RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK'S OFFICE

Des Plaines River Watershed

Alliance, Livable Communities

Alliance, Prairie Rivers Network,

and Sierra Club,

Petitioners

)

v.

)

Illinois Environmental Protection

)

Agency and Village of New Lenox, )

Respondents

)

Dorothy Gunn, Clerk

Illinois Pollution Control Board

James R

. Thompson Center, Suite 11-500

100 West Randolph Street

Chicago, IL 60601

Albert F. Ettinger

Senior Staff Attorney

Environmental Law & Policy Center

35 East Wacker Drive, Suite 1300

Chicago, IL 60601

Dated: June 1, 2007

Drinker Biddle Gardner Carton, LLP

191 North Wacker Drive - Suite 3700

Chicago, IL 60606

312-569-1441 (Direct Dial)

312- 569-3441 (Facsimile)

PCB 04-88

(Third party NPDES Permit Appeal Water)

NOTICE OF FILING

Bradley P . Halloran

Illinois Pollution Control Board

James R. Thompson Center, Suite 11-500

100 West Randolph Street

Chicago, IL 60601

Sanjay K. Sofat

Assistant Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

Springfield, IL 62794-9276

PLEASE TAKE NOTICE that on Friday, June 1,

2007, we filed the attached

Respondent Village of New Lenox's Motion for R

'deration and

espondent Village of

New Lenox's Memorandum Of Law In Suppo

otion for Re onsideration with the

Clerk of the Pollution Control Board, a copy o

erewith

ed pon you .

THIS FILING IS BEING SUBMITTED ON RECYCLED PAPER

JUN 0 1 2007

Pollution

STATE OF

Control

ILLINOIS

Board

---

RESPONDENT VILLAGE OF NEW LENOX'S

MOTION FOR RECONSIDERATION

NOW COMES the Respondent, the VILLAGE OF NEW LENOX ("Village"), by and

through its attorney, Roy M. Harsch, of Drinker Biddle Gardner Carton LLP, and pursuant to 35

Ill. Adm. Code 101 .520, hereby moves the Illinois Pollution Control Board (the "Board") to

reconsider its Opinion and Order dated April 19, 2007, in the above-captioned matter. In support

thereof, the Village states as follows:

I .

The Board should reconsider its Order dated April 19, 2007, and uphold the

NPDES Permit as issued by IEPA on October 31, 2003, for the following reasons, and as set

forth in the Village's accompanying Memorandum of Law In Support

.

2.

First, as acknowledged by the Board,

a third-party petitioner (not the Board itself)

bears the burden to rn ove that the permit as issued violates the Act or Board regulations

. 415

ILCS 5/40(a)(1)(2004); 35 Ill . Adm. Code § 105 .112 (a). While the Board repeatedly recited this

standard in its Order, it failed to hold Petitioner to this standard, and instead reversed the burden

of proof onto IEPA. In doing so, it clearly and improperly relieved Petitioner of its burden of

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1

BEFORE THE ILLINOIS POLLUTION CONTROL BOAR

RECEIVED

CLERKS OFFICE

JUN 0 1 2007

Des Plaines River Watershed

Alliance,

Livable Communities

)

STATE OF ILLINOIS

) PCB 04-88

Pollution Control Board

Alliance, Prairie Rivers Network,

)

and Sierra Club,

) (Third party NPDES Permit Appeal Water)

Petitioners

)

v.

)

Illinois Environmental Protection

)

Agency and Village of New Lenox, )

Respondents

)

---

proof. Because Petitioner itself failed to prove that the permit as issued would violate the Act or

applicable Board regulations, the Board acted improperly in looking beyond Petitioner's

arguments and performing its own de novo

review of the evidence in the record to come to its

conclusions .

3 .

Additionally, the Board's conclusions stand in stark contrast to the previous ruling

of the Board denying Petitioner's Motion for Summary Judgment (dated November 17, 2005), in

which the Board had held that Petitioner failed to show an absence of material fact issues

necessary to meet its burden and prove its case, and as to which points the Petitioner never

presented any additional evidence subsequent to the ruling

.

4.

Second, the

Board violated Respondent's due process rights because

Respondent's discovery requests before the adjudicatory hearing before Board hearing were

denied, and Petitioners did not make their witnesses available at the hearing

. This left

Respondent bereft of opportunity to subject the unsworn public comments and other material

previously introduced at the Agency hearing to cross-examination, including the ability to

question the commentators, to seek discovery to clarify such arguments, or to otherwise examine

such comments at the adjudicatory hearing . This ruling contravenes the Board's procedural rules

at 35 Ill. Adm . Code §§ 101 .610 and 101 .612, past Board decisions, the Illinois Administrative

Procedure Act, Illinois Court decisions, and the Illinois Constitution .

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WHEREFORE, for these reasons, Respondents respectfully request that the Board

reconsider its April 19, 2007 Order and defer to the permit as issued by the IEPA .

Respectfully Submitted,

Dated: June 1, 2007

Roy M . Harsch (ARDC # 1141481)

Drinker Biddle Gardner Carton LLP

191 North Wacker Drive, Suite 3700

Chicago, Illinois 60606

(312) 569-1441 (Office)

(312) 569-3441 (Fax)

"I

11

A

One of i attorneys"

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3

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BEFORE THE ILLINOIS POLLUTION CONTROL BOA(RK'S

RECEIVED

OFFICE

JUN 0 1 2007

PCB 04-88

Pollution

STATE OF

Control

ILLINOISBoard

(Third party NPDES Permit Appeal Water)

Des Plaines River Watershed )

Alliance, Livable Communities )

Alliance, Prairie Rivers Network, )

and Sierra Club,

)

Petitioners

)

v

.

)

Illinois Environmental Protection

)

Agency and Village of New Lenox, )

Respondents

)

RESPONDENT VILLAGE OF NEW LENOX'S MEMORANDUM OF LAW

IN SUPPORT OF ITS MOTION FOR RECONSIDERATION

NOW COMES the Respondent, the VILLAGE OF NEW LENOX ("Village"), by and

through its attorney, Roy M . Harsch, of Drinker Biddle Gardner Carton LLP, and hereby submits

this Memorandum of Law in support of its Motion for Reconsideration of the decision of the

Illinois Pollution Control Board (the "Board") dated April 19, 2007, in the above-captioned

matter

.

I.

INTRODUCTION

On April 19, 2007, the Board entered an Opinion and Order ("Board Order") holding that

the Illinois Environmental Protection Agency ("IEPA") improperly issued a National Pollution

Control Elimination System (NPDES) Permit to the Village to expand a wastewater treatment

facility in New Lenox (the "Plant") that discharges treated effluent to Hickory Creek, a tributary

to the Des Plaines River . (Board Order, at 1-2). The Board found that the IEPA failed to

properly consider the effect of the increased discharge from the Plant on Hickory Creek, in

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violation of 35 Ill . Adm. Code 302 .105 (c) and Section 39 of the Illinois Environmental

Protection Act (the "Act"),

415 ILCS 5/39 (2004)), as summarized below :

1) The Board found that

the record establishes that the increased loading may degrade the

stream and the IEPA did not consider the impact of increased loading of phosphorus and

nitrogen on the receiving stream ;

2) The Board found that

the record does not support the IEPA's determinations that the

water quality standards for offensive conditions dissolved oxygen, pH, and copper will

not be violated based on the increased loading to the stream ; and,

3) The Board also finds that the record does not demonstrate that existing uses will be

protected given the increase in discharge to Hickory Creek .

(Board Order, at 2)(emphasis added) . The Board therefore remanded the permit to IEPA for

additional review pursuant to the antidegredation provisions of the Board rules and consistent

with the Board Order.

(Id.)

For the reasons set forth below, the Board should reconsider its Order dated April 19,

2007, and uphold the NPDES Permit as issued by IEPA on October 31, 2003 .

First, as

acknowledged by the Board, a third-party petitioner (not the Board itself) bears the burden to

prove that the permit as issued violates the Act or Board regulations . 415 ILCS 5/40(a)(1)(2004) ;

35 Ill . Adm. Code § 105 .112 (a).

While the Board repeatedly recited this standard in its Order, it

failed to hold Petitioner to this standard, and instead

reversed the burden of proof onto IEPA . In

doing so, it clearly and improperly relieved Petitioner of its burden of proof . Because Petitioner

itself failed to prove that the permit

as

issued would violate the Act or applicable Board

regulations, the Board acted improperly in looking beyond Petitioner's arguments and

performing its own de novo review of the evidence in the record to come to its conclusions

.

These conclusions also stand in stark contrast to the previous ruling of the Board denying

Petitioner's Motion for Summary Judgment, in which the Board had held that Petitioner failed to

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show an absence of material fact issues necessary to meet its burden and prove its case, and as to

which points the Petitioner never presented any additional evidence subsequent to the ruling .

Second, the Board violated Respondent's due process rights because Respondent's

discovery requests before the adjudicatory hearing before Board hearing were denied, and

Petitioners did not make their witnesses available at the hearing . This left Respondent bereft of

opportunity to subject the unswom public comments and other material previously introduced at

the Agency hearing to cross-examination, including the ability to question the commentators, to

seek discovery to clarify such arguments, or to otherwise examine such comments at the

adjudicatory hearing

. This ruling contravenes the Board's procedural rules at 35 Ill . Adm . Code

§§ 101 .610 and 101 .612, past Board decisions, the Illinois Administrative Procedure Act, Illinois

Court decisions, and the Illinois Constitution .

For these reasons, Respondents respectfully request that the Board reconsider its April 19,

2007 Order and defer to the permit as issued by the IEPA .

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On June 10, 2002, the IEPA received the Village's application for expansion of its existing

waste water treatment plant built in 1973 from 1 .54 million gallons per day ("MGD") design

average flow to 2 .516 MGD . This expansion was needed to provide sanitary waste treatment to

service projected population growth and because the existing plant was operating at 85 percent

capacity (Record at 354 and 424) . The IEPA gave public notice of the draft NPDES permit on

January 5, 2003 (Record at 598)

. At Petitioners' request, the IEPA held a public hearing on April

24, 2003 where Petitioners were provided the opportunity to comment on the draft NDPES

permit (Record at 61-104) . Following the public hearing, the Petitioners provided written

comments (Record at 107-322)

. Thereafter, the IEPA prepared a responsiveness summary to

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these public comments (Record at 339-376) . IEPA issued a final NPDES permit with changes in

response to the Public Comments on October 31, 2003 (Record at 353) .

On December 2, 2003, Petitioners filed an appeal of the NPDES permit issued to the

Village. On December 18, 2003, the Board accepted the third party NPDES permit appeal as

required by 35 Ill. Adm. Code 105.210 and Section 40(e)(2) of the Act . On January 5, 2004 the

IEPA filed the Record. On August 24, 2005, the Hearing Officer granted the IEPA's motion to

amend the record and therefore, accepted the Second Amended Record .

On March 2, 2004 the Hearing Officer directed the parties to file a discovery schedule,

and on March 11, 2004 the Village proposed a 240-day schedule

. The IEPA proposed a

discovery schedule closing on January 10, 2005 and a proposed hearing date of March 10,

2005 .' Petitioners stated that they did not believe any discovery was necessary

. As requested

by the Hearing Officer's Order dated April 1, 2004, the parties submitted briefs addressing the

need for and justification of the proposed discovery

. The discovery issue was thoroughly

briefed by the parties by the end of April of 2004

. On November 17, 2005 (over a year later),

the Board found that neither the IEPA nor the Village had justified the discovery sought and

directed the Hearing Officer to proceed with holding a hearing consistent with the November

17, 2005 Board order.

During the pending of the discovery dispute, Petitioners filed a Motion for Summary

Judgment on February 4, 2005

. The Board rejected the Village's Motion to Stay the Motion for

Summary Judgment, and the parties were ordered to file briefs regarding the Motion for

Summary Judgment .

On May 25, 2005, the Village filed its Memorandum of Law in

I The actual hearing was held on March 30, 2006 which is more than one year after a hearing

would have been held pursuant to both discovery schedules .

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Opposition to Petitioner's Motion for Summary Judgment and its Response to Petitioners

Statement of Relevant Facts from the Agency Record . The IEPA filed its Agency's Response to

Petitioners Motion for said Memorandum of Law in Support of Summary Judgment .

Petitioners' Reply Regarding Relevant Facts in the Agency Record was filed on June 8, 2005 .

On November 17, 2005, the Board found there were significant factual disputes and

genuine issues of material fact with respect to each of the issues raised by Petitioners and

therefore, denied the requested summary judgment with respect to each issue . In its conclusion

(found on page 40 of the November 17, 2005 order), the Board directed the appeal to proceed to

hearing

. A hearing was held on March 30, 2006 . Despite the fact that the Board had ruled

against Petitioners' Summary Judgment Motion due to the existence of fact issues with respect

to Petitioners' burden of proof, Petitioners chose not to present any witnesses or evidence at the

hearing. In response, neither the IEPA nor the Village presented any witnesses . On April 21,

2006, Petitioners filed their Post Hearing Memorandum, and on June 29, 2006, pursuant to the

extensions granted by the Hearing Officer, the Village filed a Post Hearing Brief

. IEPA also

filed a Post Hearing Brief on June 30, 2006 . Petitioners filed a final Post Hearing Reply

Memorandum on July 21, 2006 .

As noted above, on April 19, 2007, the Board entered its Opinion and Order holding that

IEPA improperly issued an NPDES Permit to the Village for the expansion of its New Lenox

wastewater treatment facility.

Consequently, the Village has timely filed' its Motion for

Reconsideration and this Memorandum In Support .

2 Pursuant to 35 Ill . Adm. Code § 101 .520(a), "Any motion for reconsideration

. . . of a final

Board order must be filed within 35 days after the receipt of the order ." New Lenox received a

copy of the Board's Order on May 1, 2007 . Because the deadline for filing a motion to

reconsider is June 5, 2007, New Lenox's Motion and Memorandum in support are timely filed.

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III

. STANDARD OF REVIEW

Under the standard for a motion to reconsider, the Board should reconsider the rulings in

its Order due to errors in the application of existing law under the Act . It is well-accepted that a

party may file a motion to reconsider "to bring to the [Board's] attention newly discovered

evidence which was not available at the time of the hearing, changes in the law or errors in the

[Board's] previous application of existing law . " People v

. Community Landfill Co, Inc

.,

PCB

No

. 03-191, 2006 WL 1665241, at *1 (June 1, 2006) (emphasis added) .

IV. ARGUMENT

A.

The Board Improperly Ignored the Petitioners' Burden to Prove that the

Issuance of the Permit Would Violate the Act or Board Regulations

No party to this permit appeal, nor the Board itself, disagrees that Petitioners, as third party

appellants, bore the burden of proving that "the permit, as issued to the Village, would violate the

Act or Board regulations ."

Prairie Rivers Network v. PCB, 335 Ill . App . 3d 391, 400-401, 735

N.E.2d 372, 379-80 (4th Dist

. 2002), appeal denied 203 I11 .2d 569, 788 N.E.2d 734 (2003) ;

accord

Prairie Rivers Network v . IEPA and Black Beauty Coal Co., PCB 01-112, 2001 WL

950017 (August 9, 2001)(citing 415 ILCS 5/40(e)(3) (2000))

. The Board unequivocally held in

its April 19, 2007 Order that :

As recently as January of 2007, the Board reiterated the long standing holding on

who bears the burden of proof in a permit appeal proceeding and what the

standard of review is in a permit appeal . The Board's scope of review and

standard of review are the same whether a permit applicant or a third party brings

a petition for review of an NPDES permit

. The distinction between the two types

of NPDES permit appeals is which party bears the burden of proof

. Under

Section 40(e)(3) of the Act, in a third party NPDES permit appeal, the burden of

proof is on the third party.

Under Section 40(a)(1) of the Act, if the permit

applicant appeals the permit, the burden of proof is on the permit applicant .

(Order, at 11)(citations omitted, emphasis added) .

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The Board went on to note that the question presented was "whether the

third party proves that

the permit as issued will violate the Act or Board regulations

." (Order, at 11)(emphasis added) .

The Board has noted that "mere dislike" of the permit will not satisfy this burden ; rather,

petitioners in a permit appeal must demonstrate a violation. Village of Lake Barrington, Cuba

Township, Prairie Rivers Network, Sierra Club, Beth Wentzel and Cynthia Skrukrud v . Illinois

EPA and Village of Wauconda and Slocum Drainage District, PCB 05-55, PCB 05-58 and PCB

05-59 (consolidated), 2005 WL 946593, at *5, (April 21, 2005) .

The Board simply cannot ignore the significance of the burden of proof ; yet, the language

and analysis of the Board Order appears to pay mere lip-service to this central issue, and focuses

instead on the Board's own review of the record

. In fact, after reciting the law applicable to the

burden of proof and reaffirming that Petitioners bear this burden (main discussion at pages 8-11),

nowhere after this preliminary discussion in the Board Order does the Board reference the

Petitioners' burden or whether or not Petitioners met this burden as to any specific issue

.

Petitioner's burden of proof is not mentioned again anywhere by the Board' until the conclusion

on page 50 of the Order

.

The specific language of the Order illustrates that the Board's analysis at each turn

focuses on its own review of the record rather than viewing IEPA's grant of the permit through

the prism of Petitioners' arguments, and holding Petitioners to their burden of proving that the

permit as issued would cause violations of the Act or Board regulations

. In fact, the approach

taken by the Board in the present case often has the effect of

reversing the burden of proof onto

IEPA,

a clear error under the oft-quoted standards acknowledged by the Board itself

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For example, in the Board's discussion of the antidegredation of Hickory Creek, the

Board found that "the record indicates that the IEPA failed to assure that the water quality

standards for offensive conditions, dissolved oxygen, pH and copper

will not be violated because

of the increased discharge under the permit

." (Board Order, at 38)(emphasis added). Similarly,

in the context of the issue of dissolved oxygen standards, the Board found that "the permit as

granted does not assure that the increased discharge would not result in violations of the

dissolved oxygen or pH standards and the issues of the permit violates Section 302

.105(c) ."

(Board Order, at 46)(emphasis added)

. And, regarding the issue of the copper water quality

standard, the Board found that "IEPA failed to assure that discharge would not cause violations

of the acute or chronic [copper ] standard and the issuance of the permit violates Section

302.105(c)

." (Board Order, at 50)(emphasis added)

.

This approach strongly contrasts with a similar case in which the Board found that the

petitioner, Prairie Rivers Network (also one of the Petitioners in the present case), had failed to

sustain its burden of proving that the NPDES permit, as issued, would violate the Act or Board

regulations .

Prairie Rivers Network v. IEPA and Black Beauty Coal Co., PCB 01-112, 2001 WL

950017 (August 9, 2001) . In Black Beauty Coal Co., the Board first reiterated the appropriate

burden of proof

:

The Board concludes that Section 40(e)(3) of the Act unequivocally places the

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

applicant or a third-party

. See 415 ILCS 5/40(e)(3) (2000) . As petitioner, Prairie

Rivers bears the burden of proving that the permit, as issued, would violate the

Act or Board regulations

.

Black Beauty Coal Co., 2001 WL 950017 at * 7

.

' While the Petitioners' burden of proof is mentioned in the context of the summaries of the

arguments put forth by IEPA and the Village, as explained herein, the Board never applies the

burden of proof to any of its analysis.

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permit :

The Board then discussed the standard of its review of the decision of IEPA to issue the

Related to the burden of proof issue is the standard of review . Pursuant to the

Board's opinion in Waste Management, Inc. v. IEPA (November 26, 1984), PCB

84-45, PCB 84-61, PCB 84-68 (consolidated), IEPA's decision to issue the permit

in this instance must be supportable by substantial evidence . This does not,

of

however,

proofin

shift

this

the

matterburden

.

away from the petitioner, who alone, bears the burden

Id. (emphasis added).

In Black Beauty Coal Co., as in the case at issue here, petitioners and the IEPA engaged

in a spirited and lengthy dispute over the facts in the record and the significance and meaning of

those facts as they related to IEPA decision to issue the permit . However, in

Black Beauty Coal

Co., the Board then properly conducted its entire analysis of the permit appeal by considering the

petitioner's arguments and weighing whether petitioner had met its burden to prove the permit as

issued would cause a violation

. For example, the Board concluded that:

while raising a number of concerns regarding the [Advent Group Water Quality]

Study, Prairie Rivers has failed to make a demonstration that the terms of the

permit issued by IEPA will result in a violation of the Act of Board Regulations .

* * The Board concludes that Prairie Rivers has not proven that the permitted

discharge will harm beneficial uses or cause violations of water quality standards .

Therefore, the Board finds that the permit as issued will not violate the Act or

Board regulations .

Black Beauty Coal Co., 2001 WL 950017 at * 22

.

As shown above, the Board in Black Beauty Coal Co.

properly focused its analysis on the

petitioner, and the question on appeal was simply whether the petitioner had met its burden of

proof

. While the Board's analysis detailed the arguments on both sides as to the sufficiency and

accuracy of the evidence considered by IEPA, the Board simply concluded that "Prairie Rivers

has failed to show that the NDPES permit as issued by IEPA to Black Beauty on December 27,

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200, would violate the Act or Board regulations . Therefore, the permit is upheld

." Id., 2001 WL

950017 at *25 .

Similarly, in Village of Lake Barrington,

the Board applied exactly the same kind of

analysis and held the petitioner to its burden to show that the permit as issued would cause a

violation

. In that very similar case, the Board held:

As discussed above, in this proceeding the burden is on the Residents and Slocum

to establish that the issuance of the NPDES permit will result in a violation of the

Act or Board regulations . Thus, to prevail on this issue, Residents and Slocum

must demonstrate that the Agency's antidegradation assessment was insufficient

and as a result the permitted discharge will not protect the existing uses of the

receiving stream

. The Board finds that Residents and Slocum have not

demonstrated that the permitted discharge will detrimentally affect the existing

uses of the receiving waters .

Village of Lake Barrington, 2005 WL 946593, at *10 .

Thus, as explained above, it appears clear that, despite repeatedly acknowledging the

burden of proof to which Petitioners must be held in the beginning of the Order, the Board

simply failed to hold Petitioner to this standard,

and in fact reversed the burden of proof onto

IEPA to show that the issuance of the permit would not cause violations

. Because Petitioner

itself failed to prove that the permit as issued would violate the Act or applicable Board

regulations, the Board acted improperly in looking beyond Petitioner's arguments and

performing its own de novo

review of the evidence in the record to come to its conclusions .

The Board's actions in the present case appear even more incongruous to its previous

determinations of permit appeals such as Black Beauty Coal Co. and Village of Lake

Barrington,

considering that the Board in this case had previously denied Petitioners' Motion

for Summary Judgment by order dated November 17, 2005, coupled with Petitioners decision

not to present any case at the hearing held on March 30, 2006

. The Board's November 17, 2005

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order provides a thorough examination of the arguments raised by Petitioners in their Motion

for Summary Judgment concerning all of the issues raised in this NPDES Permit appeal :

nutrient loadings, offensive water conditions standard and copper water quality standard

.

Before denying the Motion for Summary Judgment, the Board examined on an issue-by-issue

basis the arguments presented by Petitioners in support of their Motion for Summary Judgment,

followed by an analysis of the IEPA's responses, and then the Village's response which was

then followed by Petitioners' reply . (November 17, 2005 Board Order, 8-40) .

As set forth in page 8 of the November 17, 2005 order, "The Board will then conclude

each section with an analysis of findings on that issue before reaching its conclusion on the

Motion for Summary Judgment and issuing its order ." With respect to each issue presented by

Petitioners the Board found that it "cannot conclude that there is no genuine issue of material

fact" and concluded that "significant factual issues remain unresolved with regard to the

matters" and therefore, the Board denied Petitioners' Motion for Summary Judgment on each of

the three issues . (November 17, 2005 Board Order, 40)

The Board found that there exist in the record facts that support the ][EPA's decision to

issue the permit in question with respect to each of the issues raised by Petitioner in its appeal

.

The denial of the Motion for Summary Judgment put Petitioners on notice of the Board's

recognition that such material facts supporting the issuance of the permit exist in the record

.

Nevertheless, Petitioners chose not to present any case at the hearing and relied solely on the

record before the IEPA . Having lost its Motion for Summary Judgment and electing not to

proceed with any additional testimony at the hearing in this matter, it seems clear that Petitioners

did not, and could not, meet their burden to show that IEPA's decision to issue the permit in

question is not supported .

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In light of these issues, the Village respectfully requests that the Board reconsider its

April 19, 2007 decision and allow the issuance of the permit by IEPA to stand .

B.

The Board Has Violated Respondents Due Process Rights and Contravened

Its Own Regulations By Denying Respondents Discovery Requests

As has been noted before, the Village continues to respectfully disagree with the Board's

November 17, 2005 decision to deny the Village's and IEPA's request for discovery, and submit

that this error has unduly prejudiced the Village and deprived it of its due process rights, which

should compel the Board to reconsider its April 19, 2007 Order and uphold the issuance of the

permit at issue. Significantly, as explained below, the Board seems to acknowledge in the Order

itself the Village's entitlement to at least some discovery, but ultimately denies that the Village

was deprived of any of its rights . (Order, at 19) .

1 .

Discovery is consistent with Board's rules and purpose

The purpose of an adjudicatory hearing is to provide the Board with all the evidence

necessary to make an informed decision in the specific case before it, subject to the Act's limits

to the kind of information the Board can consider .' As argued by the IEPA and the Village in

their briefs in support of their request discovery and as noted in pages 36 and 37 of the November

17, 2005 Board Opinion, discovery is authorized by the Board's procedural rules pursuant to 35

Ill. Adm . Code §105 .100 and is consistent with past Board NPDES Permit appeal cases,

(including third party permit appeal cases), where discovery has been allowed (See Black Beauty

Coal Co.) The IEPA and the Village presented arguments and examples of where discovery

could be useful in attempting to resolve the material issues of fact that were found by the Board

See "Citizens Guide to the Illinois Pollution Control Board- Adjudicatory Hearings

." Available

at:<http :www.ipcb .state .il .us/AboutTheBoard/CitizensGuidetotheBoard

.asp?Section=Hearings .

See also, 35 Ill . Adm. Code § 101 .610.

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in reviewing Petitioners' Motion for Summary Judgment and, thereby, providing the necessary

evidence to effectuate an informed decision by this Board .

In presenting this position, the Village readily admits and understands that the appeal is

based upon the record amassed before the IEPA at the time of final permit decision pursuant to

Section 40(e)(3) of the Act

. The Board's statement on page 38 of its November 17, 2005 order

that discovery was inappropriate because the Board review is limited to the record before IEPA at

the time of permitting decision and is not based on information developed by the permit

applicant, or the IEPA after the IEPA's decision, misses the point made by the IEPA and the

Village.

As acknowledged by IEPA, the public hearing on a proposed NPDES Permit decision is a

legislative informal hearing to inform the public of the proposed agency decision and to garner

public comments prior to the IEPA's final decision . (IEPA Brief at 7 citing 35 Ill . Adm . Code

§ 166.120) . In agreeing with Petitioners that discovery is not allowed in this third party NPDES

Permit Appeal, the Board is in effect rewriting its procedural rules

. The appropriate reading of

the requirements of the Act is set forth in IEPA and the Village's pleadings . The review before

the Board is based upon the record before the IEPA at the time of permit issuance

. However,

factual issues presented in the record may be, and should be, subject to discovery to assist the

Board in makings its determination . In fact, the Board acknowledges as much in its April 19,

2007 Order, noting that "Respondents could have called witnesses to clarify statements made

during the IEPA hearings ." (Board Order, at 19)

. It is clear, therefore, that discovery serves the

purpose of allowing any party to the proceeding to present clarifying testimony, including expert

testimony, regarding such facts raised before the IEPA and included in the record

.

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At the time of the original adoption in of the NPDES rules, IEPA told the Board that its

resources did not allow for holding two contested adjudicatory hearings, one at the Board and

another before the IEPA. Harsch, Roy M . and Gail C . Ginsberg,

The National Pollutant

Discharge Elimination System in Illinois, 27 DePaul L.Rev. 739, 747-750 (1978). The Board

concurred and provided that the hearing at the IEPA would be an uncontested public

informational hearing with the opportunity for a contested formal adjudicatory hearing at the

Board on appeal, as provided in sections 32 and 33(a) of the Act

.

Id.

ILL. REV. STAT. ch. 111

V2

§§ 1032, 1033(a) (1975). This decision was in accordance with the then current USEPA

regulations mandating what must be in a State program to support delegation of the NPDES

permit program

. While the USEPA has since changed its rules to reflect its current system of

uniform appeals to the Environmental Appeals Board ("EAB")(See 65 Fed . Reg. 30,886 (May

15, 2000)), no changes to the Board's procedural rules have been made that alter the nature of

informal IEPA hearing and the Board's Adjudicatory hearing.

In not allowing for discovery in this third party NPDES appeal, where the Board has

found material issues of fact exist in the record, the Board has ignored its own rules, the Illinois

Administrative Review Act, and Illinois case law, and the Illinois Constitution

. In this case,

there was no forum to cross-examine or even question those who spoke at the IEPA's public

hearing. Moreover, with the Board's decision denying Respondents request for discovery and

Petitioners choosing not to present these people to testify at the Board's formal hearing, the IEPA

and the Village were not afforded the opportunity to explore the basis for and validity of public

comments that are set forth in the record and which the Board relied upon in making its

determination .

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2.

The Board Has Infringed Upon the Respondents' Due Process Rights

Because Discovery Is Necessary to Effectuate An Accurate Determination of

the Facts In the Record .

The Illinois Supreme Court has recognized and this Board has confirmed that "The

safeguards of a due process hearing are absent until the Hearing before the Board ." Village of

Lake Barrington, 2005 WL 946593, at *15 (citing IEPA v. PCB, 115 Ill. 2d 65, 70 (1986)) .

Moreover, the Illinois Supreme Court has stated that when government agencies adjudicate or

make binding determinations which directly affect the legal rights of individuals, it is imperative

that those agencies use procedures which have traditionally been associated with the judicial

process. Village of Lake Barrington, 2005 WL 946593, at *15 (citing Klaeren II v. Village of

Lisle, 202 111. 2d 164, 184 (2002)). The process before the IEPA is a fact-finding investigation,

while the process before the Board is an adjudication that directly affects the legal rights of an

individual . Id.

The Illinois Administrative Procedure Act supports the same conclusion

. In Borg-

Warner Corporation v. Mauzy, 100 Ill. App . 3d 862, 872, 427 N .E.2d 415, 422-23 (3d

. Dist.

1981), the court held that under the Illinois Administrative Procedures Act, no adjudication was

required for the NPDES permit applicant under either State or Federal law, prior to the time the

IEPA makes its determination to issue or deny a NPDES permit

. However, once the IEPA issues

the NPDES permit as occurred in the present case, an applicant or third party is afforded an

adjudicatory hearing before the Board as provided under sections 16 (a) and (c) of the Illinois

Administrative Procedure Act .

Id.

at 872

. 5 Moreover, the hearing before the IPCB is conducted

5 In

Borg-Warner, the court cited to what was then the Illinois Administrative Procedure Act as

IIl .Rev.Stat.1977, ch .127, par. 1016. However, since then the cited Illinois Administrative

Procedure Act provisions have been codified under 5 ILCS 100/10-65 (a), (d), and (e).

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under the Rules for adjudicatory cases . Id. at 868

. Applying such law to this case, the Village,

while not entitled to an adjudicatory-type hearing before the IEPA issued the Village's Permit, is

entitled to an adjudicatory hearing that comports to the due process requirements as incorporated

into rules for adjudicatory cases once the Village was before the IPCB . Clearly, the Board's

decision as to whether Petitioners have met their burden of proof directly affects whether and in

what manner the Village will expand its wastewater treatment plant as allowed in the permit

issued by IEPA . Therefore, as stated by the Illinois Supreme Court and this Board, the Village

must be afforded due process in this present adjudication .

Moreover, the Board's suggestion in its April 19, 2007 Order that Respondents could

have solved this problem by calling witnesses on the stand to "clarify" statements made at the

IEPA hearing at once acknowledges that Respondent in fact have a right to such discovery, while

at the same time suggests an impractical and unworkable half-solution . (Order, at 19) . Simply

calling witnesses cold to the stand at the Board hearing (even assuming that all needed witnesses

would be available) would not afford the Village, the IEPA, or any other party a full and fair

opportunity to gather background information, prepare to question witnesses, and otherwise be in

a position to fully explore any such issues that required "clarification ."

V. CONCLUSION

It is unquestioned that the Petitioners had the burden of proof in this third-party appeal,

and that the Board should have required the Petitioners to prove that the permit as issued violates

the Act or Board regulations . Yet, the Board appears to have ignored its own iteration of the

standard at issue, and in fact, on numerous occasions, reversed the standard and found the IEPA

failed to show a lack of proof that the permit would not assure that a standard would not be

violated

. Additionally, the Board violated the Village's due process rights because its discovery

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requests before the adjudicatory hearing before Board hearing were denied, and Petitioners did

not make their witnesses available at the hearing

. This ruling contravenes the Board's procedural

rules, past Board decisions, the Illinois Administrative Procedure Act, Illinois Court decisions,

and the Illinois Constitution

. The Board's suggestion that questioning witnesses at the time of

the Board hearing is a sufficient sop for allowing such discovery is unworkable, and in fact

illustrates that an opportunity for real and meaningful discovery is in fact necessary to safeguard

the Village's due process rights .

Respectfully Submitted,

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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing Notice of Filing and the attached

Respondent Village of New Lenox's Motion for Reconsideration and Respondent Village of

New Lenox's Memorandum of Law In Support of Its Motion For Reconsideration

was filed

by hand delivery with the Clerk of the Illinois Pollution Control Board and served upon the

parties to whom said Notice is directed by first class mail on June 1, 2007 .

CHOI/ 12511140.1

*WP~44

A

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Illinois Pollution Control Board

State of Illinois

*1 PEOPLE OF THE STATE OF ILLINOIS, COMPLAINANT

V .

COMMUNITY LANDFILL COMPANY, INC

., AN ILLINOIS CORPORATION, AND THE CITY OF

MORRIS, AN ILLINOIS MUNICIPAL CORPORATION, RESPONDENTS

PCB 03-191

June 1, 2006

(Enforcement -

Land)

ORDER OF THE BOARD

On April 17, 2003, the Office of the Attorney General, on behalf of the People of

the State of Illinois (People), filed a one-count complaint against alleging

failure to provide adequate financial assurance for closure and post-closure

operations . Community Landfill Company, Inc

. (CLC) is the operator, and the City

of Morris (Morris) the owner, of the Morris Community Landfill, a special waste

and municipal solid waste landfill located at 1501 Ashley Road, Morris, Grundy

County

. The Board accepted the complaint for hearing on May 1, 2003

.

On March 31, 2006, both CLC and Morris (respondents) filed motions to reconsider

the Board's February 16, 2006 interim opinion and order granting summary judgment

in favor of the People

. As discussed below, the Board grants both parties' motions

for reconsideration

. Upon reconsideration, however, the Board upholds the Board's

February 16, 2006 interim opinion and order and directs the hearing officer to

proceed to hearing on the issue of remedy

.

PROCEDURAL BACKGROUND

On July 21, 2005, the People moved the Board to grant summary judgment in its

favor

. On October 3, 2005, CLC responded and moved to strike portions of the

People's motion for summary judgment

. On October 4, 2005, Morris responded to the

People's motion and filed a counter-motion for summary judgment

. On October 18,

2005, the People made several filings, including a response to CLC's motion to

strike and a response to the counter-motion for summary judgment

. On that same

day, the People moved the Board for leave to file a reply in support of the

People's motion for summary judgment instanter

. The People claimed that CLC

misrepresented the issue of relief and stated that the misrepresentation could

result in material prejudice if the People were not allowed to reply

. The Board

granted the motion and accepted the People's reply

.

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On

February

16, 2006, the Board granted CLC's

motion and struck the People's

request for an interim remedy from the motion for summary judgment

. The Board then

granted the People's motion and denied Morris' counter-motion

. Finally, the Board

ordered the hearing officer to proceed expeditiously to hearing on the issue of

remedy .

STANDARD FOR RECONSIDERATION

A motion to reconsider may be brought "to bring to the [Board's] attention newly

discovered evidence which was not available at the time of the hearing, changes in

the law or errors in the [Board's] previous application of existing law

." Citizens

Against Regional Landfill v

. County Board of Whiteside County, PCB 92-156, slip

op . at

2 (Mar . 11, 1993), citing Korogluyan v

. Chicago Title & Trust Co ., 213 Ill .

App . 3d 622, 627, 572 N.E.2d

1154, 1158 (1st Dist . 1991) ; see also 35 Ill

. Adm .

Code 101 .902

. A motion to reconsider may specify "facts in the record which were

overlooked

." Wei Enterprises v

. IEPA, PCB 04-23, slip op . at 5 (Feb . 19, 2004)

.

"Reconsideration is not warranted unless the newly discovered evidence is of such

conclusive or decisive character so as to make it probably that a different

judgment would be reached

." Patrick Media Group, Inc . v

. City of Chicago, 255 Ill

.

App . 3d 1, 8, 626 N.E

.2d 1066, 1071 (1st Dist . 1993) .

CLC'S MOTION FOR RECONSIDERATION

*2 In its motion for reconsideration, CLC has presented no newly discovered

evidence or changes in the law

. Accordingly, the following paragraphs discuss only

CLC's

arguments as to how the Board allegedly misapplied the law

. CLC seeks

clarification from the Board's "finding of violations

." Mot . at 2 . CLC contends

that a finding that CLC

disposed waste is a prerequisite to a violation of Section

811

.700(f) of the Board's rules, which prohibits the operation of a waste disposal

facility without proper financial assurance

. Mot . at 4 .

CLC

requests that the Board order the parties to hearing on the matter of the

respondents' liability in regard to allegations of "improper waste disposal" prior

to any hearing on remedy

. Further, CLC asks the Board to clarify its findings and

to reconsider the grant of summary judgment in favor of complainant

.

MORRIS' MOTION FOR RECONSIDERATION

As in CLC's

motion for summary judgment, Morris has also presented no newly

discovered evidence or changes in the law

. Morris has set forth many of the same

arguments as in its response to the People's motion for summary judgment opposing

any finding of violation

. The Board will not reanalyze these arguments, but will

discuss only Morris' arguments as to how the Board allegedly misapplied the law

.

Though Morris continually refers to assertions made by the State and the State's

arguments, the Board assumes Morris is alleging that the Board misapplied the law

.

Morris' primary argument is that the Board is mistaken in interpreting Section

21(d)(2) liberally, when Morris argues Section 21(d)(2) should be interpreted

narrowly .

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THE THE PEOPLE'S RESPONSES

Response to CLC

The People claim that CLC has failed to articulate any newly discovered evidence,

changes in the law or errors in the Board's application of existing law

. The

People argue, therefore, that CLC's motion for reconsideration must fail

. The

People contend that if the Board should find sufficient reasons for

reconsideration, the motion should fail and the Board should reaffirm its February

16, 2006 interim opinion and order in its entirety

.

The People assert that the Board's order "clearly articulates that both

Respondents conducted a waste disposal operation ." Resp

. to CLC at 4 ; citing Board

order at 14

. Further, the People argue that there is no requirement to prove that

the respondents' waste disposal was improper, only that it occurred at the time

the respondents failed to have proper financial assurance

. Because there are no

genuine issues of material fact that would preclude summary judgment, the People

urge the Board to deny CLC's motion for reconsideration and uphold the February

16, 2006 interim opinion and order

. Reap . to CLC at 8

Response to Morris

The People assert that Morris does not offer any new evidence or allege a change

in the Act or Board regulations

. Rather, Morris is challenging the Board's

interpretation of the record

. In doing so, the People claim Morris merely repeats

many of the arguments already rejected by the Board in the Board's February 16,

2006 order granting summary judgment

.

*3 The People state that in accordance with Section 2 of the Act, the Board must

liberally construe the Act to effectuate its purposes

. Resp

. to Morris at 2 ;

citing State Oil Co . v . People, 352 Ill

. App . 3d 813, 822 N .E

.2d 876, at 822 (2d

Dist . 2004) ; 415 ILCS 5/2 (2004)

. The People also restate many of the arguments

presented in the motion for summary judgment

. The THE People maintain that the

behavior of a party determines whether it is an "operator," and the City's actions

demonstrate continuous involvement in waste disposal-related decisions at the

Site . Resp . to Morris at 4

. The People conclude that the Board has correctly

applied the relevant provisions of the Act and Subtitle G regulations and that

Morris' motion to reconsider should be denied

.

BOARD DISCUSSION

The Board grants both parties' motions for reconsideration, finding that the

Board did not misapply the law on either of the two points that the parties

raised

. Despite granting the respondents' motion for reconsideration, the Board

finds no errors in how it applied the law in the February 16, 2006 order and

upholds the opinion and order granting summary judgment in favor of the People

.

The Board first seeks to clarify CLC's confusion about the Board's finding of

0

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violations in the

February 16, 2006 interim opinion and order

. The Board's

February 16, 2006 order the Board struck allegations that continued disposal at

the site qualified as a newly pled cause of action on

which relief could be

requested

. This is evidenced by the Board's statement "the Board grants CLC's

motion and strikes references to the People's requests for relief from the summary

judgment pleading

." See People v . Community Landfill Co

., Inc . and City of Morris,

PCB 03-191, slip

op . at 13 (Feb . 16, 2006) (emphasis added)

. The Board order did

find that the respondents operated a waste disposal site without having adequate

financial assurance

. These findings are what are required to have a cause of

action under Section 811

.700(f) of the Board's rules . 35 Ill

. Adm . Code 811 .700(f)

.

The alleged fact that waste disposal continued at CLC has not been struck from

the record, as there is no reason to do so

. In fact, the February 16, 2006 Board

order explicitly stated that "[t]he parties may address . . .

the duration of the

violations . .

. at hearing and in final briefs on the issue of remedy

."

Improper waste disposal is not a prerequisite to a finding of violation under

Section 811 .700(f)

. The Board will not, therefore, grant CLC's request to hold a

hearing on the "Respondents' liability in regard to Complainant's allegations of

improper waste disposal ."

Next, the Board addresses Morris' arguments in support of reconsideration

. The

Board finds it correctly interpreted section 21(d)(2) of the Act and Sections

811 .700(f) and 811

.712(b) of the Board's regulations

. According to Section 2 of

the Act, "[t]he terms and provisions of the Act shall be liberally construed so as

to effectuate the purposes of this Act

." 415 ILCS 5/2 (2004)

. Rowe Foundry &

Machine Co ., v

. IEPA, PCB 88-21, slip op . at 9 (Feb . 23, 1989)

; citing Reynolds

Metals Co . v . PCB and IEPA, 108, Ill

. App . 3d 161, 438 N .E.2d

1267, 63 Ill . Dec .

904 (1982) (holding that it is generally unnecessary to look beyond the language

of the statute

. Where different interpretations are urged, however, the court must

look to the reasons for enactment of the statute and construe the statute in a way

that is consistent with that purpose) .

*4 Section 811

.700(f) states that "no person

. . .

shall conduct any waste disposal

operation" unless that person complies with the financial assurance regulations

.

As discussed in the Board's February 16, 2006 order, caselaw specifically provides

that the Board takes a broad view of what types of activities constitute

"operating" a waste disposal site

. See People v . Poland, Yoho, and Briggs Ind

.,

Inc ., et al ., PCB 98-148, slip op . at

18 (Sept . 6, 2001)

. The purpose of the Act

is to ensure that financial assurance obligations are met so that neither human

health nor the environment is harmed from the operation of a municipal solid waste

landfill

. The Board must interpret the Act as it applies in each individual

instance

. The Board finds that Morris' decision-making authority, financial

involvement, history of litigation, and responsibility for at least one aspect of

the site operations, the treatment of leachate, collectively qualifies as

"conducting a waste disposal operation ."

As concerns the Board's finding of violations against both respondents, the

Board's procedural rules require the "owner or operator" to provide financial

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assurance . See 35 Ill . Adm .

Code 811 .700, 706, et

seq . Under the Illinois

codification scheme, the use of

"or" allows either

or both parties to meet the

requirements

. The Board is not allowed to use "and/or" in drafting rule language

.

See Safe Drinking Water Act Update, Phase IIB and Lead and Copper Rules

(6/1/91-12/31/91), R92-3 (May 5, 1993)

. The Board finds it properly interpreted

the Act and Board regulations broadly in analyzing the specific facts of this case

and upholds the February 16, 2006 interim opinion and order granting summary

judgment on the alleged financial assurance violations

.

REMEDY

The parties have not yet analyzed the 33(c) or 42(h) factors regarding an

appropriate remedy, including civil penalty, if any, in this proceeding

. If a

complainant proves an alleged violation, the Board considers the factors set forth

in Sections 33(c) and 42(h) of the Act to fashion an appropriate remedy for the

violation

. See 415 ILCS 5/33(c), 42(h) (2004)

. Specifically, the Board considers

the Section 33(c) factors in determining, first, what to order the respondent to

do to correct an on-going violation, if any, and, second, whether to order the

respondent to pay a civil penalty

. The factors provided in Section 33(c) bear on

the reasonableness of the circumstances surrounding the violation, such as the

character and degree of any resulting interference with protecting public health,

the technical practicability and economic reasonableness of compliance, and

whether the respondent has subsequently eliminated the violation

.

If, after considering the Section 33(c) factors, the Board decides to impose a

civil penalty on the respondent, only then does the Board consider the Act's

Section 42(h) factors in determining the appropriate amount of the civil penalty

.

Section 42(h) sets forth factors that may mitigate or aggravate the civil penalty

amount, such as the duration and gravity of the violation, whether the respondent

showed due diligence in attempting to comply, any economic benefit that the

respondent accrued from delaying compliance, and the need to deter further

violations by the respondent and others similarly situated .

*5 Accordingly, the Board further directs the hearing officer to advise the

parties that at hearing, each party should

: (1) discuss whether to impose a

remedy, if any, including a civil penalty, for the violations and support its

position with facts and arguments that address any or all of the Section 33(c)

factors

; and (2) propose a civil penalty, if any, including a specific dollar

amount, and support its position with facts and arguments that address any or all

of the Section 42(h) factors

.

In the motion for summary judgment, the People also request attorney fees

pursuant to Section 42(f) of the Act

. 415 ILCS 5/42(f) (2004) . Therefore, at

hearing the parties must also address whether the respondents committed any

"willful, knowing, or repeated violation of this Act, any rule or regulation

adopted under this Act, any permit or term or condition of a permit, or any Board

order ." Id .

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CONCLUSION

The Board grants both CLC's and Morris' motions to reconsider with respect to the

Board's alleged misapplication of the law

. The Board, however, denies the

respondents' requests and upholds the Board's February 16, 2006 ruling granting

summary judgment in favor of the People on the violations alleged in the complaint

and directs the hearing officer to proceed to hearing on the issue of remedy

.

IT IS SO ORDERED .

N .J

. Melas

2006 WL 1665241 (I11 .Pol .Control

.Bd .)

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Illinois Pollution Control Board

State of Illinois

*1 PRAIRIE RIVERS NETWORK, PETITIONER

V .

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY AND BLACK BEAUTY COAL COMPANY,

RESPONDENTS

PCB 01-112

August 9, 2001

(Permit Appeal - NPDES, Third-Party)

Albert F

. Ettinger, Appeared on Behalf of Prairie Rivers Network

SPAT

Sanjay K

. Sofat, Assistant Counsel, Appeared on Behalf of Respondent, Illinois En-

vironmental Protection Agency

; and

SPAT

W .C

. Blanton, Appeared on Behalf of Black Beauty Coal Company

OPINION AND ORDER OF THE BOARD

Petitioner Prairie Rivers Network (Prairie Rivers) appeals the issuance of a Na-

tional Pollutant Discharge Elimination System (NPDES) permit to Black Beauty Coal

Company (Black Beauty) by the Illinois Environmental Protection Agency (IEPA)

.

Prairie Rivers brings this appeal pursuant to Section 40(e) of the Environmental

Protection Act (Act)

(g1_5

TT,CS

5/40(e)

(2000))

.

For the reasons described below, the Board finds that Prairie Rivers failed to sus-

tain its burden of proving that the NPDES permit, as issued, would violate the Act

or Board regulations

. Accordingly, the Board finds that IEPA properly issued the

permit to Black Beauty .

PRELIMINARY MATTERS

Before addressing the substance of this appeal, there are three preliminary matters

before the Board

. The first is a motion to supplement the record filed by Black

Beauty via facsimile on May 29, 2001, and a response filed by Prairie Rivers on June

7, 2001

. Black Beauty's motion seeks to supplement the record with a press release

issued by Prairie Rivers on May 10, 2001

. Black Beauty argues that the press release

should be admitted as an admission by Prairie Rivers that the water quality stand-

ards of 35 Ill

. Adm

. Code 302 and 303 (Subtitle C) do not apply to mine-related dis-

charge . Black Beauty Mot

. at 2

. In its response, Prairie Rivers argues that the

Board should make its decisions based exclusively on the record that was before

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IEPA, and

that the press

release was written for laymen

. Prairie Rivers Resp . at

1-2 .

The Board finds that the press release is not relevant to the issue of whether

Prairie Rivers has proven that the NPDES permit, as issued, would violate the Act or

Board regulations

. Further, the Board finds that the press release is not a document

IEPA would have relied upon in making a permit decision

. Accordingly, Black Beauty's

motion to supplement the record is denied .

The second preliminary matter is IEPA's June 1, 2001 motion for leave to file its

posthearing brief instanter

. In its motion, IEPA states that although it served its

posthearing brief on the parties on May 25, 2001, as required by hearing office or-

der, it failed to also serve the Board

. In fact, IEPA's brief was not filed with the

Board until May 31, 2001

. [FN1] IEPA's attorney claims that he misunderstood the

hearing officer's directions regarding service of the brief on the Board

. As a res-

ult, IEPA seeks leave to file its posthearing brief instanter

. Because the parties

to this permit appeal did receive IEPA's brief in a timely manner, and because

Prairie Rivers' ability to file its posthearing reply brief was not prejudiced by

IEPA's late filing with the Board, the Board grants IEPA's motion for leave to file

instanter and accepts the brief .

*2 Finally, the Board must address the fact that a number of the public comments

submitted in this matter were filed well after the public comment period expired

.

Pursuant to the hearing officer's order of May 11, 2001, posthearing public comments

were due on or before May 14, 2001

. The hearing officer explicitly stated in his or-

der that the "mail box rule" of

35

111

. Adm .

Code 101 .300 would not apply, and that

each filing, including but not limited to public comments, must be in the Board's

Chicago office on or before the assigned due date

.

The Board received a total of 30 public comments

. The Board received 10 public com-

ments before the May 14, 2001 deadline, and 20 more after expiration of the dead-

line . of those, public comments 18, 20, 21, and 22 were docketed as group comments

consisting of 46, 22, 9, and 5 (respectively) identical pre-printed postcards, which

provide, in pertinent part

:

I am a member of Prairie Rivers Network

. As a citizen who is deeply concerned

about the Little Vermilion River I urge you to make significant changes to the water

pollution permit for Black Beauty Coal Company's Vermilion Grove Mine

.

In issuing the permit Illinois EPA did not allow the public to comment on key as-

pects such as the monitoring of effluent and stream flow rates, monitoring of fish

and mussel populations, and the plan for operating the mine

. In short, public parti-

cipation was circumvented

.

This mine has already impacted the Little Vermilion River

. In February Black

Beauty had three illegal discharges from its facility

. These discharges allowed

large amounts of silt and sediment to enter a tributary to the Little Vermilion,

possibly adding to siltation problems in nearby Lake Georgetown and smothering hab-

itat important to three state protected species in the area

.

We urge you to address the issues which Prairie Rivers Network has raised in its

petition .

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Of the 96 postcards received, only two were timely received

. Vermilon Coal Company

(Vermilion Coal) filed its public comment on May 14, 2001 (PC 10), then filed a sup-

plement on May 25, 2001, without a proof of service and refiled on May 29, 2001,

with a proof of service

. None of the public comments received after May 14, 2001,

were accompanied by a motion for leave to file instanter

.

The Board finds that the hearing officer order imposing a deadline of May 14, 2001,

for the filing of public comments was unambiguous

. Among other things, it was de-

signed to assure that the parties in this permit appeal would have a sufficient op-

portunity to address public comments in their posthearing briefs

. No justification

for these late filings was offered and leave to file comments late was not sought

.

Accordingly, the Board strikes those comments received by the Board after May 14,

2001

. While the Board will not consider the substance of these late-filed comments,

it notes that two of the Prairie Rivers ""postcard" comments and the original com-

ments from vermilion Coal were timely received and may, therefore, be considered by

the Board in this decision .

BACKGROUND

*3 Black Beauty was granted an NPDES permit on December 27, 2000, for discharges

from the Vermilion Grove Mine, located in Vermilion County, Illinois

. R . at 953

.

[FN2] The Vermilion Grove mine (mine) is an underground coal mine that is expected

to produce two to three million tons of coal per year

. Tr . at 383

. While Black

Beauty will actually be mining the coal, vermilion Coal is the owner of the coal

. R .

at 321

. While the Board denied Vermilion Coal's petition for leave to intervene, the

Board did grant Vermilion Coal permission to file an amicus curiae brief pursuant to

Section 101

.110(c) of the Board's procedural rules

(35 Il

Adm . Code

101 .110(c))

.

See Prairie Rivers Network v

. IEPA (April 19, 2001), PCB 01-112

. Vermilion Coal's

amicus brief was filed on May 25, 2001 .

The mine is located approximately 2

.5 miles south of Georgetown and one mile west

of State Highway 1 . R . at 558

. The proposed discharge, via Outfall 003, is to an un-

named tributary of the Little Vermilion River

. Id

. Downstream of the unnamed tribu-

tary's confluence with the Little Vermilion River is the Georgetown Reservoir, the

Harry "Babe" Woodyard State Natural Area, and the Carl Flierman River Nature Pre-

serve . Id .

Prairie Rivers is "a statewide river conservation group [that works] with organiza-

tions and individuals throughout Illinois on issues that deal with protection of our

rivers and streams as well as water quality issues throughout the state of

Illinois ." Tr

. at 13 . [FN3]

On January 30, 2001, Prairie Rivers filed this third-party petition for review of

IEPA's December 27, 2000 issuance of a final NPDES permit to Black Beauty for the

mine

. On February 15, 2001, the Board accepted this matter for hearing

. IEPA filed

its administrative record on March 2, 2001

. A hearing was held before Board Hearing

Officer John

Knittle on May 1 and 2, 2001, at the Vermilion County Courthouse in

Danville, Illinois .

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At hearing, Prairie Rivers offered testimony from two witnesses

: Robert Moore, Ex-

ecutive Director of Prairie Rivers (Tr . at 13)

; and Rosa Ellis, a concerned citizen

who is a member of Prairie Rivers (Tr . at 86)

. IEPA presented one witness, Toby Fre-

vert, an IEPA employee who coordinated "the agency's review and preparation in re-

sponse to [Black Beauty's] permit application

." Tr . at 95

. Two persons testified on

behalf of Black Beauty

: Dean Vlachos, an environmental engineer with Advent Group

;

and Eric Fry, a geologist for Black Beauty

. In addition to the testifying witnesses,

the following persons also gave public comments on the record

: Jean Hayward, Gloria

Mariage, Bill Ellis, Rosa Ellis, and Karen Crum

. A number of exhibits were also in-

troduced into the record at hearing .

Posthearing briefs were filed by all parties

. Prairie Rivers filed its brief and

reply brief on May 18, 2001, and May 31, 2002, respectively

. Posthearing briefs, in-

cluding amicus briefs, were filed on May

25, 2001,

by Black Beauty, Vermilion Coal,

and the Illinois Environmental Regulatory Group (IERG)

. IEPA filed its brief on May

31, 2001 .

The Board has also received a number of public comments, including com-

ments from Vermilion Coal and from members of Prairie Rivers

. [FN4]

*4 Oral argument was sought on two separate occasions

. Prairie Rivers and Black

Beauty first sought oral argument after the hearing and before posthearing briefs

were filed

. Since the Board could not determine whether oral argument would be ne-

cessary or beneficial, this first request was denied

. See Prairie Rivers Network v .

IEPA (May 17,

2001), PCB 01-112 .

The second motion for oral argument was made by

Black Beauty following completion of the posthearing briefing schedule

. Having then

had the opportunity to review the posthearing briefs, the Board determined that it

would be beneficial to schedule an oral argument, and did so for July

12, 2001 . Oral

argument was held as scheduled

; Prairie Rivers, Black Beauty, and IEPA all particip-

ated . [FNS]

REGULATORY FRAMEWORK

Statutory Authority

Prairie Rivers' permit appeal was brought pursuant to a statutory provision, en-

acted in 1997, which authorizes interested third-parties to appeal NPDES permits to

the Board . See 41.5 TICS

5/40(e) (2000) . Section 40(e) of the Act provides

:

1

. If the Agency grants or denies a permit under subsection (b) of Section 39 of

this Act, a third party, other than the permit applicant or Agency, may petition the

Board within 35 days from the date of issuance of the Agency's decision, for a hear-

ing to contest the decision of the Agency .

2 .

A petitioner shall include the following within a petition submitted under

subdivision (1) of this subsection :

A

. a demonstration that the petitioner raised the issues contained within the

petition during the public notice period or during the public hearing on the NPDES

permit application, if a public hearing was held

; and

B

. a demonstration that the petitioner is so situated as to be affected by the

permitted facility .

3

. If the Board determines that the petition is not duplicitous or frivolous and

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contains a satisfactory demonstration under subdivision (2) of this subsection, the

Board shall hear the petition (i) in accordance with the terms of subsection (a) of

this Section and its procedural rules governing permit denial appeals and (ii) ex-

clusively on the basis of the record before the Agency

. The burden of proof shall be

on the petitioner

. The Agency and permit applicant shall be named co-respondents

.

415ILCS 5/40(e)

(2000)

(emphasis added) .

Regulatory Obligations

In addition to the statutory framework of Section 40(e) of the Act, several rules

also guide the Board's consideration of this permit appeal

. In particular, the pro-

visions of 35 Ill Adm .

Code

406,202

and 440¢ .203

are integral to the Board's determ-

ination in this case . They provide as follows

:

Section406 .202

Violation of Water Quality Standards

:

In addition to the other requirements of this Part, no mine discharge or non-

point source mine discharge shall, alone or in combination with other sources, cause

a violation of any water quality standards of 35 111

. Adm

. Code 302 or 303 . When the

Agency finds that a discharge which would comply with effluent standards contained

in this Part would cause or is causing a violation of water quality standards, the

Agency shall take appropriate action under Section 31 or 39 of the Environmental

Protection Act to require the discharge to meet whatever effluent limits are neces-

sary to ensure compliance with the water quality standards

. When such a violation is

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

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

reductions will be determined on the basis of technical feasibility, economic reas-

onableness and fairness to all dischargers . 35 Ill-

Adm . Code 406,202

*5

t.i.on 406 .203

TDS Related Permit Conditions provides :

a) This Section sets forth procedures by which water quality-based permit condi-

tions for total dissolved solids, chloride, sulfate, iron and manganese may be es-

tablished by the Agency for coal mine discharges

. These procedures apply instead of

Section 406

.202

whenever a permit applicant elects to proceed under this Section

. A

permittee must comply with water quality-based permit conditions for total dissolved

solids, chloride, sulfate, iron and manganese established pursuant to this Section

instead of Section 406 .207 .

Public hearings may be required pursuant to

35 Ill . Adm .

Code

309 .115 .

b) An applicant may elect to proceed under this Section by providing the required

information as part of a new or renewed or supplemental state or NPDES permit ap-

plication

.

c) The Agency shall establish permit conditions under this Section if all of the

following conditions are met :

1) The applicant proves to the Agency that the discharge will not cause an ad-

verse effect on the environment in and around the receiving stream, by either

:

A) Demonstrating that the discharge will contain a concentration less than or

equal to 3500 mg/l sulfate and 1000 mg/l chloride ; or,

B) Through actual stream studies .

2) The applicant proves to the Agency that the discharge will not adversely af-

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fect any public water supply

; and

3) The applicant proves to the Agency that it is utilizing good mining prac-

tices designed to minimize discharge of total dissolved solids, chloride, sulfate

iron and manganese .

d) The Agency may promulgate under

35 Ill . Adm . Code 405,1.01(c)

a code of good

miningg practices consistent with the definition in Section 406

.204

. Compliance with

the code of good mining practices shall be prima facie evidence that the applicant

is utilizing good mining practices within the meaning of paragraph (c)(3)

.

e) Whenever the Agency issues a permit based on this Section, it shall include

such conditions as may be necessary to ensure that

:

1) There is no adverse effect on the environment in and around the receiving

stream ;

2) The discharge does not adversely affect any public water supply

; and

3) The permittee utilizes good mining practices designed to minimize discharge

of total dissolved solids, chloride, sulfate, iron and manganese

.

f) Whenever the Agency issues a permit pursuant to this Section, [it] may include

as a condition a requirement that the permittee submit to the Agency effluent data

for total dissolved solids, chloride, sulfate, iron and manganese

. 15 Ill .

Adm . Code

406 .203 .

Section 406 .202

requires compliance with the general water quality standards of

Section 302 and 303 (Subtitle C) of the Board's water regulations

.

Section 406 .203,

however, gives an NPDES permit applicant the option of proceeding under its provi-

sions instead

; electing this option means that IEPA (rather than a pre-existing

series of regulations) establishes "water quality-based permit conditions for total

dissolved solids, chloride, sulfate, iron and manganese . .

. for [the] coal mine dis-

charges ." 35

1 .1

.

.

Adm Code 406 201(a) .

BURDEN OF PROOF/STANDARD OF REVIEW

*6 Section 40(e)(3) of the Act provides that the burden of proof shall be on the

petitioner in third-party NPDES permit appeals such as this

.

AlILCS

5/40(e)(3)

(2000) .

Although this is the first third-party appeal of an NPDES permit in which a

Board hearing has been held since Section 40 was amended to specifically authorize

the filing of NPDES permit appeals, (See Pub

. Act

. 90- 274, adding Section 40(e)(1)

to the Act effective July 30, 1997), the Board has consistently applied this same

statutory burden in other permit appeals brought under Section 40 of the Act

(415

LLCS 5/40 (2000)) . See, e .g.,

Panhandle Eastern Pipe Line Company v . IEPA (January

21, 1999), PCB 98-102

.

Prairie Rivers argues that a different interpretation of the burden of proof in

third-party NPDES permit appeals should be applied

. Specifically, Prairie Rivers

urges the Board to consider the petitioner's burden of proof "together with the lan-

guage of the statute limiting the review to the Agency record and the provision of

Section 39(a) of the Environmental Protection Act that states that permits shall

only be issued 'upon proof by the applicant' that the permit 'willl not cause a viol-

ation of this Act or the regulations .-ID'hereunder

Prairie Rivers Br . at 12, citing

415 1LCS 5/39(a) (2000) . Prairie Rivers further argues that, "while the burden of

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persuasion is on the petitioner

. . .

Hilt is for the applicant to prove to the

Agency that it is eligible for the requested permit

." Prairie Rivers Br

. at 13 .

Prairie Rivers cites to case law from other states (Alabama and Alaska) in support

of the proposition that IEPA permitting decisions should be reversed if not suppor-

ted by "substantial evidence in the administrative record

." Id

. Finally, Prairie

Rivers also argues that with regard to legal questions, the Board is entitled to a

de novo review of IEPA determinations

. Id .

Prairie Rivers reaffirmed these arguments during the July 12, 2001 oral argument

.

Specifically, Prairie Rivers acknowledged that as petitioner, it -`must show that

there were legal errors or that . . .

factual determinations were made that were not

supported by substantial evidence in the record

." Oral Arg . Tr

. at 7 . Prairie

Rivers, however, argues that its burden, "is informed by the burden that went on be-

low . . .

[a]nd in this case, the burden below was on the applicant, Black Beauty Min-

ing Company, to prove that it qualified, that it was eligible for the permit it re-

ceived." Oral Arg . Tr

. at 8 .

Black Beauty, IEPA, and IERG oppose Prairie Rivers' interpretation of the burden of

proof

. Black Beauty argues that the burden of proof is on the petitioner in a permit

appeal, regardless of whether the petitioner is the permit applicant or a third-

party

. Black Beauty Br . at 9

. Furthermore, Black Beauty maintains that Prairie

Rivers bears the burden of showing that, "the permit, as issued by the Agency, would

violate the Act or the Board's regulations

." Id . citing Damron v

. IEPA (April 21,

1994), PCB 93-215 .

*7 Similarly, IEPA also argues that Prairie Rivers, as the petitioner, bears the

burden of proof in this matter

. IEPA states that, "[slince the Petitioner challenged

the Agency's decision, it must come forward with the evidence to show that the per-

mit issued by the Agency will cause a violation of the Act or the regulations here-

under." IEPA Br

. at 4 (emphasis in original)

. IEPA agrees, however, that the "sub-

stantial evidence" test is the appropriate standard by which the Board should review

IEPA's decision . Id

. In other words, according to IEPA, if its decision is support-

able by substantial evidence in the record, then it must be sustained

. Id .

Black Beauty and IEPA reiterate these positions during oral argument

. First, IEPA

states that, "for the petitioner to bring a third-party permit appeal at a bear min-

imum it must provide some evidence to show that the permit as issued will cause a

violation of the [A]ct or the regulations

." Oral Arg . Tr . at 17

. Likewise, Black

Beauty argues that the nature of this appeal (third-party) does not change the bur-

den of proof from that which is applied in permit appeals when the appellant is the

permit holder

. Oral Arg . Tr . at 33

. Black Beauty maintains that Prairie Rivers,

"must prove that this permit as written will cause a violation of Illinois law

." Id .

Finally, IERG's arguments support the positions of Black Beauty and IEPA

. Specific-

ally, IERG states, "[ilt has long been clear in Illinois that in appeals of de-

cisions by the IEPA regarding permits, 'the burden of proof shall be on the peti-

tioner

."D' IERG Br . at 3, citing

43.5

ILCS

S/40(e)(3) (2000) .

The Board concludes that Section 40(e)(3) of the Act unequivocally places the bur-

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den of proof on the petitioner, regardless of whether the petitioner is a permit ap-

plicant or a third-party

. See

415

IL CS

5/40(e)(3) (2000) .

As petitioner, Prairie

Rivers bears the burden of proving that the permit, as issued, would violate the Act

or Board regulations .

Related to the burden of proof issue is the standard of review

. Pursuant to the

Board's opinion in Waste Management, Inc . v

. IEPA (November 26, 1984), PCB 84-45,

PCB 84-61, PCB 84-68 (consolidated), IEPA's decision to issue the permit in this in-

stance must be supportable by substantial evidence

. This does not, however, shift

the burden away from the petitioner, who alone, bears the burden of proof in this

matter

.

SCOPE OF BOARD REVIEW

Section 40(e)(3) of the Act directs the Board to consider the petition

""exclusively on the basis of the record before the Agency

."

415 TICS

5/40(e)(3)

(2000) .

Section 105

.212(b) of the Board's procedural rules provides a listing of the

information that is to be included in IEPA's administrative record, including

:

1) Any permit application or other request that resulted in the Agency's final

decision ;

2) Correspondence with the petitioner and any documents or materials submitted by

the petitioner to the Agency related to the permit application

;

-8 3) The permit denial letter that conforms to the requirements of Section 39(a)

of the Act or the issued permit or other Agency final decision

;

4) The hearing file of any hearing that may have been held before the Agency, in-

cluding any transcripts and exhibits

; and

5) Any other information the Agency relied upon in making its final decision

.

A

Ill, Adm . Code 105 .212(b)

(emphasis added) .

Section 105

.214(a) of the Board's procedural rules also addresses the scope of re-

view

. It provides, in pertinent part, that the hearing before the Board, ""will be

based exclusively on the record before the Agency at the time the permit or decision

was issued, unless the parties agree to supplement the record pursuant to Section

40(d) of the Act ."

35111 . Adm . Code 105 .214(a) .

Prairie Rivers argues that generally, "there are sound policy reasons for

. . . lim-

iting the Board's review to the record before the Agency

." Prairie Rivers Br . at 11

.

Prairie Rivers acknowledges, however, that under some circumstances, the Board

should consider evidence outside the record, such as when IEPA record is allegedly

incomplete, or when there are allegations of improper conduct in the permitting pro-

cess .

Black Beauty's interpretation of the statutory scope of review is broader

. Black

Beauty maintains that Prairie Rivers "effectively agreed to supplement the record"

and that Prairie Rivers, "[h)aving supplemented the evidentiary record itself

. . .

has waived any contention it might otherwise have that the Board is limited in de-

ciding this case on the basis of the Record before IEPA alone

." Black Beauty Br . at

4

. At hearing, Black Beauty sought to introduce into evidence various materials

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which it offered to refute Prairie Rivers' allegations, but which were not necessar-

ily part of IEPA's record

. Many of these documents were admitted without objection

of Prairie Rivers or IEPA

. Accordingly, Black Beauty asks the Board to consider this

case based not only on the record before IEPA, but also on those documents admitted

during the hearing conducted by the Board's hearing officer

. Black Beauty Br . at 5 .

IEPA did not address this issue in its posthearing brief

. It is worth noting,

however, that IEPA did not object during hearing to Black Beauty's introduction of

evidence that was not in its administrative record

.

In addressing the scope of review for this permit appeal, the Board is bound by the

clear directives of Section 40(e)(3) of the Act

(415 TLCS 5/40(e)(3)

(2000)) . Ac-

cordingly, for purposes of this appeal, the only information the Board may properly

consider is that information that was before IEPA below

.

The Board has consistently held that in permit appeals, its review is limited to

the record that was before IEPA at the time the permitting decision was made

. See

Community Landfill Company v

. IEPA (April 5, 2001), PCB 01-48, PCB 01-49

(consolidated) ; Panhandle Eastern Pipe Line Company v

. IEPA (January 21, 1999), PCB

98-102

; and West Suburban Recycling and Energy Center, L

.P . v

. IEPA (October 17,

1996), PCB 95-199, PCB 95-125 (consolidated) ;

A1ton Packaging Corn, v . PCB . 162 111,

Ann

. 3d 731, 516 N .E .2d 275 (5th Fist

. 1987)

(court affirmed Board, holding that

scope of Board's review in permit appeal is limited to record before permitting

agency) . Alton

Packaging 162 111, Ago . 3d

at

738,

516 N E 2d at 280 .

Moreover, Sec-

tion 40 of the Act (415 lhCS 5/40

(2000))

does not differentiate between the scope

of review in permit appeals brought by permit holders and those brought by third

parties .

*9 Accordingly, the Board rejects Black Beauty's argument that

Section 105 .214(a)

provides a basis for supplementing the record in this proceeding by agreement of

parties . Section 105,214(a)

provides the parties may agree to supplement the record

pursuant to Section 40(d) of the Act .

35

Ill . Adm .

Code 105,214(a) .

Section 40(d) of

the Act provides for supplementation of the record in appeals involving permits is-

sued pursuant to Section 9 .1(c) of the Act

. 415 I1.CS 5/40(d) (2000)

. Section 9 .1(c)

of the Act pertains only to the establishment of permitting programs under the Clean

Air Act . 415 IL CSS 5/9 .1(c)

(2000) .

Therefore, reading all of these statutory provi-

sions together, Section 105

.214(a)

allows for supplementation of the administrative

record by agreement of parties in appeals involving Clean Air Act permits

. Since the

permit at issue in this case is an NPDES permit, and since there are no specific

procedures allowing for supplementation of the record in NPDES permit appeals, the

Board's review is limited, pursuant to Section 40(e)(3) of the Act, to the record

that was before IEPA during its permit review process

. See 415

ILCS 5/40(e)(3)

(2000) .

FINDINGS OF FACT

The Permitting Process

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The events leading to this NPDES permit appeal are straightforward

. Black Beauty

has certain mining rights to coal reserves in east-central Illinois

. Once all neces-

sary permits have been issued, Black Beauty intends to mine Herrin No

. 6 coal, which

exists at a depth of roughly 200 feet below land surface

. IEPA Br . at 1 . The coal

reserve is described as "the largest remaining low sulfur coal in Illinois ." Id .

Black Beauty estimates that the mine will produce between two and three million

tons of coal per year

. Tr . at 383 . The coal will be shipped via rail to a power

plant . Tr . at 383-84

. In its public comment, Vermilion Coal estimates that the coal

mined from this site will produce, "more than 100 billion kilowatt-hours of electric

energy, at less than one-fifth the fuel cost of natural gas

." PC 25 at 2 . Vermilion

Coal also contendss that the mine contains at least 40 million saleable tons of coal

.

Id .

The surface facilities at the mine include

:

the hole in the ground to enter and leave the mine

. . . an air shaft that enables

ventilation of the mine . . .

sediment ponds to control drainage in the disturbed

areas . . . a refuse pile

. . .

a preparation plant which more or less just washes the

coal [through] a gravity separation process

. . . no chemicals

[ [are] used other than

some flocculents, the same sort of flocculents that you would see used at the Geor-

getown water treatment facility

. . . there will be a railroad

. . . [and] an office,

maintenance building . Tr . at 384-5

.

IEPA describes the sedimentation basins as follows

:

[t]he surface run-off from the mine property will be collected into three basins,

designated as, 003B, 003A, and 003

. These basins are connected in series

. The series

basin system has been designed with a capacity equal to the runoff volume from a 10

year, 24 hour precipitation event of approximately 4

.5 inches . The Outfall 003 dis-

charge structure is designed to hold discharges resulting from a 100-year, 6-hour,

storm event of approximately 4 .65 inches

. IEPA Br . at 2 ; R

. at 583 .

+10 On March 8, 2000, Black Beauty submitted an application for a coal mining and

reclamation operating permit (Application) to the Illinois Department of Natural Re-

sources, Office of Mines and Minerals (DNR) . R . at 616

. On May 15, 2000, IEPA re-

ceived a copy of this Application

. Id

. The application for an NPDES permit is con-

tained in the Application originally submitted to DNR

. Tr . at 380-81

. Also contained

in the Application is a section that allows an applicant to identify whether it is

seeking an NPDES permit and whether it is seeking a Subtitle D permit

. Tr . at 382 ;

See R . at 617

. In its Application, Black Beauty checked the boxes for both the NPDES

and Subtitle D permits

. Id .

On July 31, 2000, Larry

Crislip of the IEPA's Mine Pollution Control Program, Bur-

eau of Water, requested that a hearing be held regarding Black Beauty's application

for an NPDES permit

. R . at 1

. Public concern over the proposed mine and permit ap-

pears to have been the impetus for the hearing . R . at 1-7

.

On August 2, 2000, IEPA issued public notice of the draft NPDES permit

. IEPA Br . at

2

. On September 20, 2000, it conducted a public meeting on the permit, and held a

public hearing a week later, on September 27, 2000

. Tr . at 96

. Due to the "obvious

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public

interest"

in the proposed mine and permit, IEPA decided to hold a public

meeting in advance of the hearing in an attempt to make the hearing itself more "suf-

ficient ." Id

. The public meeting was held at the Georgetown

High

School and con-

sisted of the "Illinois EPA, Vermilion County Department of Public

Health, the

Illinois Department of Natural Resources, [[Prairie Rivers], and another group of

concerned citizens from the area (with) information booths there

." Tr

. at 15 .

Prairie Rivers participated in both the public meeting and public hearing

. It

provided oral testimony, questioned IEPA participants, and filed written comments

.

Tr . at 14

. Between 150 and 200 people attended the public hearing

. IEPA Br . at 3 ;

Tr . at 16

. A number of the attendees were members of Prairie Rivers

; some live in

such proximity to the Little Vermilion watershed that they will be affected by the

permit . Tr . at 16 ; Pet . at 2

.

Following the public hearing, there was a 30-day public comment period

. Numerous

comments were submitted to IEPA

. Tr . at 96

. After the close of the record, IEPA,

evaluated the information that was brought in, assessed the issues

which came to

the surface . .

. prepared a response to the summary, drafted the revisions to the

permit, discussed and reached consensus with [the United States Environmental Pro-

tection Agency (USEPA)] on the substance of that permit as modified, and proceeded

to issue that permit . . . on December 27th

. Tr . at 96-7 .

USEPA was consulted regarding issuance of this permit because, "[t]his is a joint

state and federal discharge permit" for which IEPA is the delegated authority in

Illinois . Tr . at 97

. As part of the delegation of authority to IEPA, USEPA retains

some oversight responsibilities with regard to NPDES permits

. Id . IEPA witness Toby

Frevert (Frevert) testified that USEPA's interest in this particular permit was, in

his opinion, the result of public interest

. Tr . at 98 . USEPA originally objected to

the draft NPDES permit, but

through

discussions with IEPA, changes were made to the

permit to which USEPA ultimately agreed

. Tr . at 97 ; R . at 942-43 .

*11 The final NPDES permit was issued to Black Beauty on December 27, 2000

. Tr . at

97 ; IEPA Br . at 3 ; R . at 953 .

The Permit

The NPDES permit allows Black Beauty to discharge intermittently (in response to

precipitation events) from Outfall 003

. Several of the permit conditions are partic-

ularly relevant to the Board's analysis of this appeal

. They are special conditions

11 and 12

.

Special Condition No . 11

; Biological Inventory

The permittee must prepare a study plan for approval by the Agency that addresses

a biological inventory of the Little Vermilion River in the vicinity of the proposed

mine

. This study plan is due within 60 days of the effective date of this permit

.

The Agency will review and provide comments leading to the approval of the study

plan within 45 days of its receipt

. The field work for the inventory will occur dur-

ing the first spring and summer following issuance of the permit

.

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Before runoff impacted by mining operations is discharged, two components of the

aquatic life community of the river, fishes and unionid mussels, must be inventoried

in the Little Vermilion River

. The sites of these inventories will be immediately

upstream and downstream of the confluence of the unnamed tributary that will receive

the mine discharge

. These sites will be chosen such that areas of similar physical

habitat will be contained in each area

. Before the actual aquatic life inventories

begin, the habitat of each site must be evaluated and boundaries for each of the two

survey sites established so that direct comparisons of aquatic life between the

sites may be facilitated .

The inventory of fishes shall be conducted in both spring and summer with a min-

imum of one day of collection effort for each season, i .e .,

one-half day of effort

per site per season

. The study plan must identify the sampling gear to be used,

which must include electrofishing and seining

. All habitats supporting fish must be

sampled including riffles, runs and pools

. The study must strive to both qualitat-

ively and quantitatively characterize the sites

. Special attention must be paid to

the identification of endangered or threatened species

. If these species are en-

countered, every effort must be made to return them unharmed to the river

. Voucher

specimens may be retained for threatened or endangered species only with the permis-

sion of the Illinois Department of Natural Resources (IDNR)

. In order that a relev-

ant comparison of the existing fish community may be made between the two sites, the

Index of Biological Integrity (IBI) or similar indicator of the health of the fish

community will be calculated for each site

. Attention will also be paid to the

health and physical condition of fish collected, including the incidence of external

physical deformity and disease

. The report for the fish inventory must include the

species and quantity of fish collected at each site along with the length and weight

of the larger species captured such that comparisons of species composition and bio-

mass maybe made .

*12 The mussel inventory must be conducted once, during a period in the summer

when stream flows are low, visibility high and mussels will be easily detected

. At

least one-half day of effort is required for each site

. Species collected must be

vouchered with dead shells whenever possible

. Living specimens may be taken as

vouchers only with the permission of the IDNR

. The mussel survey must strive to

identify all species present at each site, the numbers collected for each species

and whether each individual collected was an adult or juvenile

. Every effort must be

made to release mussels in the same habitat from which they were collected

. Similar

areas and types of habitats must be sampled at each site in order that a comparison

of the sites may be made .

Special Condition No . 12

: water Quality Monitoring

The permittee will monitor discharge and receiving stream water quality during

discharge events

. Water quality must be monitored at the following sites during dis-

charge events ;

1 . Outfall 003

2

. The unnamed tributary of the Little Vermilion River upstream of the confluence

with the discharged permitted effluent .

3

. The Little Vermilion River upstream of the confluence of the unnamed tributary

receiving the effluent .

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4 . The

Little Vermilion River downstream of the confluence of the unnamed tribu-

tary receiving the effluent at a point where mixing with the unnamed tributary has

been demonstrated to be complete

.

5

. The Little Vermilion River (Georgetown Lake) immediately above the Georgetown

dam .

All samples will be collected by the grab method

. Little Vermilion River sites (#

3 and # 4) shall be sampled at a time sufficiently delayed from the onset of dis-

charge to allow downstream travel such that samples from site # 4 will include the

contribution from the discharge

. All samples, including the effluent sample collec-

ted for each studied storm event will be analyzed for each parameter listed in the

table below

.

This monitoring program will begin with the initial discharge from the sedimenta-

tion basins and continue for every discharge event up to and including ten events

per year

. One round of sampling from the five locations given above is required for

each discharge event

. If sampling results at site # 4 exceed the trigger concentra-

tions given in the following table, the biological inventory specified in special

Condition # 11 must be repeated during the next spring and summer sampling season

.

If trigger concentrations are exceeded due to upstream sources apart from the Ver-

milion Grove Mine discharge, the permittee may document this condition and demon-

strate to the Agency that no additional biological inventories should therefore be

required

.

'

Substance/Units

STORET

Minimum

Biological

Number

Reporting

Inventory

Level

Trigger

(MDL)

Concentration

-------------------------------------------------------------------------------

Field pH [FNal] standard units

400

Tenth of a

<6 .5 or >9 .0

standard

[FNaaal]

unit

-------------------------------------------------------------------------------

Total Dissolved Solids mg/L

70300

50

500 mg/L

-------------------------------------------------------------------------------

-----------------------------------------------------------------------------

-

Total and Dissolved Metals

Total metals

except for

iron [FNaal)

-------------------------------------------------------------------------------

Barium <<mu>>g/L

1007/1005 10

2,500

<<mu>>g/L

-

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Chloride mg/L

940

5

250 mg/L

------_-____----------_-__ _

Sulfate mg/L

945

5

250 mg/L

---------_-___------------_____

Total Mercury ng/L

71900

10

1,300 ng/L

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-------------------------------------------------------------------------------

Boron cccmu>>g/L

1022/1020 10

500

<<MU>>g/L

-------------------------------------------------------------------------------

Cadmium ccmu>>g/L

1027/1025 3

13 .5

<<MU>>g/L

-------------------------------------------------------------------------------

-------------------------------------------------------------------------------

Iron ccmu>>g/L

1045/1046 50

500

ccmu>>g/L

-------------------------------------------------------------------------------

Lead <<mu>>g/L

1051/1049 5

148 .5

c<mu>>g/L

-------------------------------------------------------------------------------

Manganese ccmu>>g/L

1055/1056 10

500

ccmu>>g/L

-------------------------------------------------------------------------------

Nickel c<mu>>g/L

1067/1065 25

500

<<MU>>g/L

-------------------------------------------------------------------------------

Silver ccmu>>g/L

1077/1075 3

2 .5

<<MU>>g/L

-------------------------------------------------------------------------------

Zinc c<mu>>g/L

1092/1090 100

500

<<mu>>g/L

-------------------------------------------------------------------------------

FNal

. Field measurement

aal . Total metals are regulated under

water quality standards except for

iron, which is a dissolved metals

standard . Hardness based metals

triggers are based on a Little

Vermilion River hardness value of

244 mg/L

aaal . If pH is in violation of water

quality standard at site # 4 and the

effluent is not in compliance with

the pH permit limit, a biological

inventory requirement is triggered .

-13 Mg/L = milligrams per liter

; <<mu>>g/L = micrograms per liter

; ng/L = nanograms

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Chromium (trivalent)

ccmu>>g/L

ccmu>>g/L

1034/1030 5

1,800

Copper <<mu>>g/L

c<mu>>g/L

1042/1040 10

20 .5

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per liter

As part of the same collections described above, the following parameters must be

reported only

.

'

Substance/Units

STORET

Minimum Reporting Level (MDL)

Number

-----------------------------------------------------------------------------

Air Temperature [FNal] ° C

20

Tenth ° C

-------------------------------------------------------------------------------

Water Temperature [FNal) ° C

10

Tenth ° C

-------------------------------------------------------------------------------

Field Dissolved Oxygen [FNal] mg/L 299

Tenth of a mg/L

-------------------------------------------------------------------------------

Field Conductivity [FNal] <<mu »mhos

94

Nearest Whole

Number

-------------------------------------------------------------------------------

Volatile Suspended Solids mg/L

535

Nearest Whole Number

-------------------------------------------------------------------------------

Total Suspended Solids mg/L

530

Nearest Whole Number

-------------------------------------------------------------------------------

Total Ammonia as N mg/L

610

0

.01

-------------------------------------------------------------------------------

Alkalinity mg/L

410

50

-------------------------------------------------------------------------------

Total Acidity mg/L

70508

50

-------------------------------------------------------------------------------

Hardness (as CaC03) mg/L

900

Nearest Whole Number

-------------------------------------------------------------------------------

FNal . Field measurement

*14 Within 60 days of receipt, all information, data and reports prepared in re-

sponse to Special Condition Nos

. 11 and 12 shall be submitted to the Agency

. . . . R .

at 962-64 .

The Appeal

On January 30, 2001, Prairie Rivers filed this appeal of the NPDES permit pursuant

to Section 40(e) of the Act .

415 TICS 5/40(e) (2000) . In its appeal, Prairie Rivers

raises a number of issues, both procedural and substantive, in support of its argu-

ment that the NPDES permit issued to Black Beauty should be revoked

.

Prairie Rivers claims that its concerns for potential damage to the environment

"were confirmed" by comments provided by the Illinois Nature Preserves Commission

(Commission) and by DNR . Pet . at 2

. Prairie Rivers maintains that during the public

hearing held on September 27, 2000, and in comments submitted thereafter, it raised

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concerns regarding the draft NPDES permit

. They included

: (a) failure to specify

mixing zones

; (b) improper consideration of non-point source runoff as contributing

to dilution of discharge

; (c) potential for violation of Illinois water quality

standards

; (d) no guarantee that all stormwater would be collected and treated prior

to discharge

; (e) incomplete antidegradation analysis

; and (f) potential exacerba-

tion of existing water quality problems in drinking water supply for the Village of

Georgetown . Pet

. at 3 .

Prairie Rivers claims that the final permit, issued on December 27, 2000, contains

"most of the defects that were identified by [it] in the draft permit

." Pet . at 4

.

In its petition for review, Prairie Rivers identifies the following alleged areas in

which IEPA's analysis and the final NPDES permit are flawed

:

a) insufficient monitoring requirements (i

.e ., no provision for continuous flow

monitoring to ensure that three to one dilution ratio is met)

;

b) no requirement for whole effluent toxicity (WET) monitoring

;

c) IEPA improperly relied upon "grossly flawed" Advent Stormwater Mixing Zone

Evaluation (Pet

. at 4) ; and

d) no proper antidegradation analysis, including lack of biological study in re-

ceiving water to assure protection of existing uses

. See generally, Pet . at 4-5 .

In addition to these alleged substantive deficiencies in the permit, Prairie Rivers

also challenges the procedures utilized by IEPA prior to issuance of the final NPDES

permit

. Tr . at 36

. Specifically, Prairie Rivers objects to the fact that the final

permit is the result of what it characterizes as a "very defective permit-writing

process [in which] [t]he public was denied its right under the Clean Water Act and

Illinois law to participate in reviewing and commenting on permit conditions that

are critical to the future of the Little Vermilion River and the unnamed tributary

."

Prairie Rivers Br

. at 1 .

IEPA filed its 980 page administrative record on March 2, 2001, and supplemented it

with an additional 16 pages on March 21, 2001

. A two-day hearing was conducted by a

Board hearing officer on May 1 and 2, 2001

. Black Beauty filed several waivers of

the decision deadline

; the last extended the deadline for Board action to August 10,

2001 .

DISCUSSION

Public Participation in Permitting Process

Prairie Rivers' Argument

*15 Prairie Rivers challenges the procedures employed by IEPA prior to issuance of

the final NPDES permit

. Specifically, Prairie Rivers argues that it should have been

allowed an opportunity to review information submitted by Black Beauty after close

of the public comment period, and that the final NPDES permit should have been

available for public comment and review prior to its issuance by IEPA

. Prairie

Rivers Br . at 14 .

Prairie Rivers cites to the public participation provisions of the Clean Water Act

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in support of its position that IEPA's process is flawed

. Section 101(e) of the

Clean Water Act provides

:

Public participation in the development, revision, and enforcement of any regula-

tion, standard, effluent limitation, plan, or program established by the Adminis-

trator or any State under this chapter shall be provided for, encouraged, and as-

sisted by the Administrator and the States

. Prairie Rivers Br . at 15, citing

31

U .S .C . 51251(e) .

Prairie Rivers also relies upon Section 402 of the Clean Water Act (33

U.S .C .

51342)

as requiring "effective public participation

. . . in the drafting of NPDES

permits

." Prairie Rivers Br . at 15

. Finally, Prairie Rivers claims that, unlike what

happened in this case, the NPDES permit drafting process should be conducted in a

"fishbowl-like" atmosphere

. Prairie Rivers Br . at 15, citing AdamsV .USEPA,

38 F .ld

43, 52 (1st Cir, 1994) .

Prairie Rivers argues that the decision in

Village of Sauget v IPCB 207 Ill App

3d 974, 566

N.E .2d 724 (5th Dist . 1990),

dictates that Black Beauty's permit be re-

manded to IEPA

. In Sauget, the appellate court held that IEPA improperly issued a

final permit in which new conditions were added after the close of the public com-

ment period and without providing the permit applicant or another interested party

with notice of the new conditions prior to issuance of the permit

. Prairie Rivers

argues that the situation in Sauget is similar to that currently before the Board

and that, as a result, the permit should be revoked and remanded to IEPA for further

consideration

.

IEPA's Response

IEPA maintains that it "followed all the applicable provisions of an NPDES permit

public participation process

." IEPA Br . at 7

. IEPA directs the Board to Sections

309 .115 through 309 .119

of the Board's water regulations as being applicable to the

issue of public participation . IEPA Br . at 7

. These sections provide : (1) that IEPA

hold a public hearing if a significant degree of public interest in the draft NPDES

permit exists

(35

111,

Adm . Code 309 .115) ;

(2) that IEPA issue public notice of the

draft permit and public hearing

(35 Ill

.

Adm, Code 309 .116)

; (3) that any person is

permitted to submit oral or written public comment on the draft permit

(35 Ill .

Adm,

Code 309.117) ;

(4) that IEPA hearing officer prepare and make available to the pub-

lic a "hearing file"

(35 Ill Adm . Code 309 .118) ;

and (5) that following the public

hearing, "the [IEPA] may make such modifications in the terms and conditions of pro-

posed permit as may be appropriate ." 35 Ill Adm . Code 309.119

added) .

IEPA Br . at 7

. IEPA states that it complied with each of these procedural require-

ments . Id .

Black Beauty's Response

*16 Black Beauty echoes IEPA's arguments by stating that IEPA, -`scrupulously ad-

hered to the Illinois regulations that establish the procedures that agency must

follow in issuing an NPDES permit ." Black Beauty Br . at 27

. Black Beauty argues

that, in order to prevail, Prairie Rivers must prove that IEPA violated a regulation

regarding public participation

. Black Beauty Br . at 28 . Black Beauty suggests that

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all Prairie Rivers is doing in this case is suggest that the applicable regulations

be changed . Id

. Black Beauty further notes that Prairie Rivers' argument for applic-

ability of the public participation procedures of the Clean Water Act (CWA) is "base-

less" insofar as the CWA does not apply

. Id .

Black Beauty also responds to Prairie Rivers' reliance on the Sauget case

. Black

Beauty Br . at 29

. Black Beauty claims that Sauget is distinguishable because the

permit appellants were not third-parties, but were the permit applicant and a major

industrial facility that discharged into the applicant's treatment works

. Id . Since

the regulations only require notification of significant changes be given to the ap-

plicant, and not a third-party such as Prairie Rivers, Black Beauty argues that

Prairie Rivers has not been denied an opportunity to participate in the process

.

Black Beauty Br . at 30 .

Board's Finding

The Board finds that Prairie Rivers has failed to show that it was denied a mean-

ingful opportunity to participate in the permit process before IEPA

. The record is

clear that IEPA provided Prairie Rivers, and other interested members of the public,

with a reasonable opportunity to participate in the process

. Once IEPA learned of

the significant public interest in this NPDES permit, it proceeded to schedule not

only a public hearing, but a preliminary public meeting at which time information

regarding the permit application and draft permit was freely exchanged and questions

regarding the public hearing were answered

. Prairie Rivers was provided an opportun-

ity to participate in the public hearing by providing testimony and questioning wit-

nesses

. Additionally, Prairie Rivers also participated in a public comment period by

submitting written comments to IEPA .

The Board notes that since Section 40(e) of the Act

(415 jT,CS

S/40(e) (2000)) was

enacted in 1997, this appeal is the first third-party appeal in which a hearing has

been held and in which the Board will make a final, appealable determination on the

merits

. Nonetheless, the statutory language, for purposes of this case, is not am-

biguous

. Moreover, Illinois has specific regulations setting forth the procedures

IEPA must follow in issuing an NPDES permit . See

35 Ill . Adm . Code

109

.108,

309 .109,

309

.115,

and 309 .119 .

IEPA complied with these procedures

. Prairie Rivers' arguments

that IEPA should have provided additional opportunities pursuant to USEPA guidelines

and the CWA are not persuasive, because these federal procedures are inapplicable

here .

-17 Accordingly, the Board finds that the permitting process was fair and reason-

able and that IEPA complied with all regulatory "public participation" requirements

in issuing the permit .

Applicability of 35 111 . Adm .

Code

4Q6 .203

Many of Prairie Rivers' arguments are based on the alleged failure of the NPDES

permit to meet certain water quality standards (35 Ill

. Adm . Code 302 and 303, gen-

erally)

. Black Beauty and IEPA argue that the complained of water quality standards

do not apply to this permit or to Black Beauty's discharge .

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Black Beauty argues that, as the permit applicant, it had the option to

: (a) elect

to proceed under

35 Ill . Adm .

Code 406 .202,

which requires compliance with the gen-

eral water quality standards of 35 Ill

. Adm . Code 302 or 303

; or (b) elect to pro-

ceed under .39

-

T11 .

Adm . Code 406 .203,

which provides water quality permit conditions

specifically developed for coal mine discharges

. Tr . at 382

. At hearing, Eric Fry,

an employee of Black Beauty, testified that if a coal mine wishes to take advantage

of the water quality permit conditions of

Section 406 .203, it must affirmatively

"opt" to do so by checking the appropriate box in the operating permit application

submitted to both DNR and IEPA

. Id . Fry testified that Black Beauty "opted" into

Section 406 .203 . Tr . at 383 .

The language of

5-Action 406 .203 is very clear

. Subsection (a) provides that,

""[t]hese

procedures apply instead of

Section 406 .202 whenever a permit applicant

elects to proceed under this Section ." 35

111

Adm .

Code

406,203(a)

(emphasis ad-

ded)

. Furthermore, subsection (b) clearly gives the permittee the option of making

the election :

An applicant may elect to proceed under this Section by providing the required

information as part of a new or renewed or supplemental state or NPDES permit ap-

plication . 35 111, Adm . Code 406 .203(h) .

The Board finds that 35 Ill . Adm

. Code 406 .203(a) allows IEPA to establish specific

water quality standards for coal mine discharges for total dissolved solids, chlor-

ide, sulfate, iron, and manganese

. The plain language of this regulation allows a

permit applicant the choice of proceeding under the

Section 406,203 standards or the

general water quality standards of 35 Ill . Adm

. Code 302 and 303 .

3.

113. . Adm Code

406 .203(a),

(h) . The record in this case is clear as to Black Beauty's election to

proceed under the provisions of

Section 40

6203

. . Tr . at 383

; R . at 618 . Because the

plain language of the regulation clearly and unambiguously allows a permittee to

make this election, the Board concludes that the general water quality standards of

35 Ill . Adm

. Code 302 and 303 do not apply to coal mine discharges from Black

Beauty's mine for chloride, sulfate, iron, or manganese, since a specific election

was made in the permit application to proceed according to the conditions contained

in

1

A m

• .

0

. Rather, the site specific requirements of

35 Ill . Adm .

Code 406 .2Q1 and the NPDES permit itself apply to Black Beauty's discharge

. As dis-

cussed below, the Board also finds that these conditions are protective of the en-

vironment and of the unnamed tributary that will receive discharge from Black

Beauty's mining operations .

Sufficiency of Permit

Monitoring/Dilution Ratio

*18 Prairie Rivers' Argument

. Prairie Rivers asserts that the permit should require

proper monitoring to prevent violations of the water quality standards

. Specific-

ally, Prairie Rivers argues that the permit issued to Black Beauty does not include

the monitoring requirements that will assure a three-to-one dilution rate is

achieved . Prairie Rivers Br . at 23-24

. Instead, Prairie Rivers alleges that the per-

mit inappropriately leaves the monitoring to a side arrangement, i .e

., to a plan to

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be developed by Black Beauty 180 days after the issuance of the permit

. Prairie

Rivers Resp

. Br . at 14

. Prairie Rivers maintains that 40 C.F .R . 122 .48

requires mon-

itoring to be included in the permit and that

35

111,

Adm . Code 309 .141(d) and Sec-

tion 122

.48

require Illinois NPDES permits to comply with federal monitoring re-

quirements

. Prairie Rivers Br

. at 23 .

Prairie Rivers' dissatisfaction with the monitoring requirements focuses on Permit

Condition No

. 11 (a) and its sediment pond operation and maintenance provisions

.

Prairie Rivers Br ., Exh . E at 6

. Permit Condition No

. 11(a) sets forth as follows :

There shall be no offsite discharge from Outfall 003 caused by any source other

than precipitation, or during "no flow" or "low flow" conditions in the receiving

stream

. For purposes of this paragraph "low flow" shall be defined as any condition

wherein upstream flow available for mixing with the discharge from Outfall 003 is

less than three times the flowrate being discharged from Outfall 003

. Offsite dis-

charge from this facility is approved only at such times that sufficient flow exists

in the receiving stream to insure that water quality standards in the stream beyond

the mixing zone will not be exceeded

. . .

. At times of discharge and monitoring of

Outfall 003, receiving stream flow rates shall be determined and submitted with dis-

charge analysis results (Discharge Monitoring Reports) to demonstrate that adequate

mixing is provided to insure water quality standards are not exceeded in the receiv-

ing stream

. Within 180 days of the effective date of this permit, the permittee

shall submit an operational plan specifying the procedures to be utilized to accom-

plish the requirements of this paragraph

. IEPA Exh . 1 at 6 .

While the preceding condition requires Black Beauty to demonstrate that adequate

mixing is available, i .e .,

the available dilution is more than 3 to 1, the condition

allows the permittee 180 days after the effective date of the permit to develop the

actual monitoring protocols needed to make that demonstration

. As noted above,

Prairie Rivers argues that IEPA should have included in the permit the actual monit-

oring protocols that Black Beauty must use to demonstrate that adequate mixing is

available upon discharge .

IEPA's Response

. IEPA's response rejects Prairie Rivers' concern regarding the di-

lution and monitoring requirements

. First, IEPA states that the permit contains the

dilution provisions found in the Board's regulations for mine-related water pollu-

tion at Section 406 .104 (35

Ill . Adm . Code 406 .104) . IEPA Br

. at 13 . IEPA explains

that under the Board regulations, dilution of mine discharge is permissible as long

as the effluent is given the best treatment available prior to discharge

. Id

. Fur-

ther, IEPA cites to a Board opinion concerning the mine-related water pollution con-

trol regulations, in which the Board states that the controlled release of water

containing high levels of total dissolved solids during periods of naturally occur-

ring high flow in stream is not dilution

. Id . For this reason, IEPA states that the

permit allows Black Beauty to discharge only during wet weather conditions and re-

quires that the dilution ratio in the receiving stream be 3 to 1

. IEPA Br . at 13,

15

. Finally, IEPA maintains that the monitoring protocols provided in the permit are

adequate . Tr . at 105 .

*19 Black Beauty's Response

. Black Beauty states that Prairie Rivers' contention

regarding the monitoring requirements is without substantive merit

. Black Beauty ar-

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gues that the 3

to 1 dilution requirement

does not violate

Section 302 .102(b) . Black

Beauty Br . at 26

. In this regard, Black Beauty asserts that "dilution of the Dis-

charge by the receiving waters of the Tributary (and vice-versa with respect to TSS

[total suspended solids]) would be accomplished within one hundred feet downstream

of Outfall 003, well before the Tributary enters the River

." Id . Furthermore, Black

Beauty offered an exhibit at hearing, which was admitted as Black Beauty exhibit 56,

which demonstrates that the monitoring plan has, in fact, been defined and submitted

to IEPA

. While the Board does not look to the substance of this plan, it is worth

noting that such a plan was actually submitted pursuant to the 180 day requirement

of the NPDES permit

.

Board's Finding

. First, the Board notes that the requirement concerning available

mixing was not part of the original draft permit

. See Prairie Rivers Br

., Exh . B at

6

. It appears as if the Agency included the available mixing requirement in the fi-

nal permit in response to comments received on the draft permit concerning low flow

conditions in the unnamed tributary

. Condition No

. 11 of the final permit clearly

prohibits any discharge from Outfall 003 when the dilution ratio is less than 3 to

1

. The Board finds that this requirement, coupled with Black Beauty's obligation to

develop and utilize discharge monitoring procedures, addresses Prairie Rivers' con-

cern regarding potential violation of water quality standards during low flow condi-

tions .

Likewise, the Board finds that allowing Black Beauty 180 days from issuance of the

permit to develop a monitoring plan is not inconsistent with applicable regulations

;

especially since the condition appeared for the first time in the final permit

. The

Board believes that the 180-day period provides a reasonable amount of time for

Black Beauty to develop an appropriate plan to comply with the permit condition

based on site-specific factors

. In this regard, the Board also notes that Black

Beauty is still subject to the offsite discharge prohibition during times of "no

flow" and "low flow" during the 180-day period

.

The Board concludes that Prairie Rivers has failed to demonstrate that the terms of

the permit pertaining to mixing and discharge monitoring requirements, will cause a

violation of the Act or of Board regulations

.

Advent Study/Nondegradation

Prairie Rivers' Argument

. The Advent Study (Study) [FN6] was submitted to IEPA by

Black Beauty after IEPA's public hearing to address concerns raised regarding the

potential for water quality impacts and degradation of the receiving stream

. Prairie

Rivers Resp . Br . at 19

. Because the Study was submitted after the close of the pub-

lic hearing and public comment period, Prairie Rivers criticizes the fact that it

was not made available for public review and comment

. Prairie Rivers Br . at 22 . In

addition, Prairie Rivers argues that the Study is seriously flawed and that, had it

been given the opportunity, Prairie Rivers would have discussed these flaws with

IEPA prior to issuance of the permit

. Prairie Rivers Br . at 24 .

*20 Prairie Rivers is also critical of the nondegradation analysis performed by

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IEPA (Prairie Rivers Br

. at 21), and maintains that the Study does little to allevi-

ate its concerns

. Prairie Rivers Br . at 24

. Prairie Rivers contends, therefore, that

the Board should remand the issue of compliance with the nondegradation rules back

to IEPA for a proper nondegradation demonstration that allows for public participa-

tion

. Prairie Rivers Resp . Br . at 19

.

Prairie Rivers suggests that the Study is not reliable because, instead of using

maximum permit effluent limits to model water quality impacts, the Study is based on

surrogate data

. Prairie Rivers Resp . Br . at 19

. In this regard, Prairie Rivers notes

that the concentrations of the surrogate data are much lower than the maximum permit

effluent limits contained in the final permit, and are therefore not reliable

.

Prairie Rivers Br

. at 24 .

Prairie Rivers also questions the Study's reliance on an arithmetic average for es-

tablishing water quality data

. Prairie Rivers Br . at 20

. According to Prairie

Rivers, this is problematic because the simulated background conditions underestim-

ate the actual background water quality of the receiving stream

. Id . Prairie Rivers

further contends that because an arithmetic average eliminates higher levels of pol-

lutants from consideration, the Study

underestimates the actual levels of contaminants that may enter the receiving

stream following a discharge from Outfall 003

. Id .

Prairie Rivers further asserts that the Study is based on an incorrect assumption

that mixing occurs instantaneously . Prairie Rivers Reply Br

. at 20 . Prairie Rivers

notes that Dean Vlachos, an engineer from Advent Group, and the person responsible

for preparing the Study, testified that complete mixing would occur at approximately

100 feet from Outfall 003 . Id . ; Tr

. at 328

. Moreover, IEPA estimated that mixing

would be complete at approximately 200 feet from Outfall 003

. Tr . at 159

. IEPA also

testified that the entire flow of the stream may be used for dilution

. Tr . at 163 .

Prairie Rivers disagrees with these IRPA assumptions and contends that if the permit

allows the entire flow of the stream to be used for dilution purposes, then the per-

mit should be found to violate 35 11.1 . Adm . Code 302

.102 (h) (6) and (b) (10) and

406,204(p.) . Id .

Similarly, Prairie Rivers disagrees with an assumption contained in the Study that

the entire flow from the watershed caused by a precipitation event reaches the un-

named tributary and the Little Vermilion River instantaneously, rather than over a

period of time

. Prairie Rivers Reply Br . at 21-22

. Prairie Rivers argues that this

is an incorrect assumption that ignores the time dependent nature of the peak flows

.

Id

. Thus, Prairie Rivers contends that the assumption results in model simulations

that represent "average" discharge conditions instead of the "worst case" condi-

tions . Id .

Another concern raised by Prairie Rivers involves the failure of the Study to ad-

dress the possible instream impacts from manganese, which is one of the regulated

permit parameters . Prairie Rivers Reply Br

. at 22 . Prairie Rivers asserts that the

Study completely neglected to simulate or predict the levels of manganese that would

be present in the Outfall 003 discharge, receiving stream, or the Little Vermilion

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River . Id .

*21 Finally, Prairie Rivers contends that the Study does not accurately reflect the

measured levels of pollution in the Little Vermilion River . Prairie Rivers Resp . Br .

at 22

. Prairie Rivers asserts that the monitoring station 7SW-6, which is located on

the Little Vermilion River, downstream of the confluence with the unnamed tributary,

actually detected higher levels of pollution than those predicted by the Study

. Id .

Prairie Rivers notes that the predicted levels of iron are less than the average

levels of iron in the Little Vermilion River ; predicted levels of sulfate are less

than the lowest levels detected in the Little Vermilion River

; and predicted levels

of total suspended solids are barely above the lowest levels detected in the Little

Vermilion River . Id

. Prairie Rivers concludes that if the model cannot accurately

predict even the lowest levels of pollution, it does not predict a "worst case"

scenario . Id .

IEPA's Response . According to IEPA, the Study is not flawed

. IEPA Br . at 21 . Re-

garding the issue of mixing, IEPA states that even if mixing does not occur instant-

aneously, the discharge will still meet the water quality standards due to the sig-

nificant mixing (dilution) available in the receiving waters

. IEPA Br . at 22 . Fur-

ther, IEPA notes that mixing regulations do not require instantaneous mixing and do

allow for creation of mixing zones . Id

. Therefore, IEPA maintains that Prairie

Rivers has failed to demonstrate that even if mixing does not occur instantaneously,

that this would lead to a violation of the Act or Board regulations

. Id .

IEPA disagrees with Prairie Rivers' allegations that the Study is flawed and main-

tains that it was justified in relying on it and in issuing the final permit

. In re-

sponse to Prairie Rivers' concerns that the Study underestimates background values,

IEPA notes that it performed its own water quality impact analysis using historic-

ally high background water quality parameters and that the results of its own ana-

lysis were not much different from the Study results . IEPA Br . at 23 . Finally, IEPA

states that Prairie Rivers has failed to demonstrate that the failure of the Study

to address either a 3 to 1 dilution scenario or the potential impacts from manganese

will somehow result in a violation of the Act or Board regulations

. IEPA Br . at

22-23 .

Black Beauty's Response . Black Beauty claims that the Study accurately demonstrates

that if the discharge from Outfall 003 contains certain regulated constituents at

the same concentrations historically recorded at the nearby Riola Mine, then the wa-

ter quality standards of Section 302

.208 will not be exceeded in either the unnamed

tributary or the Little Vermilion River . Black Beauty Br . at 20

. In response to

Prairie Rivers' assertions that the Study did not consider the "worst case" condi-

tions, Black Beauty states that even those calculations made by Robert Moore, an em-

ployee of Prairie Rivers, show that there will be no exceedence of water quality

standards for sulfates, chlorides, or iron . Black Beauty Br . at 21 .

*22 Black Beauty acknowledges that the Study is silent as to any potential impacts

from manganese, indicating that there was no available data on manganese from the

Riola mine . Black Beauty Br . at 21

. However, Black Beauty argues that the Board, in

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a previous rulemaking, has already addressed the issue of manganese in coal mine

discharge

. Oral Arg . Tr . at 31

. Specifically, Black Beauty directs the Board to its

own opinion and order in Proposed Amendments to

Title 35 Subtitle

D : Mine Related

Water Pollution, Chapter I, Parts 405 and 406 (December 15, 1983), R83-6

. Id . In

R83-6, the Board determined that an effluent standard of 2

.0 milligrams per liter

(mg/L) manganese was appropriate for mine waste effluent, and was accordingly added

to the table of mine waste effluent found at

35 Ill Ado, Code

406 106 . See Proposed

Amendments to

Ti

35, Subtitle D :

Mine Related Water Pollution, Chapter I, Parts

405 and 406 (December 15, 1983), R83-6

. Since the manganese limit contained in Black

Beauty's NPDES permit is 2

.0 mg/L, Black Beauty argues that the Board has already

found this to be an appropriate amount

. Oral Arg . Tr . at 31 .

Black Beauty also argues that additional sampling performed by Vlachos supports the

conclusions contained in the Study

. At hearing, Black Beauty introduced exhibits 39,

40, and 41, in support of its position that sampling and analysis conducted after

issuance of the permit demonstrate that the permit, as issued, will not violate the

Act or Board regulations

. However, because the additional analyses are based on data

collected after issuance of the NPDES permit, the information is not properly con-

sidered by the Board in the scope of this permit appeal

. Accordingly, the Board

strikes these exhibits and will not consider them in rendering a decision in this

matter .

Nevertheless, the Board concludes that, while raising a number of concerns regard-

ing the Study, Prairie Rivers has failed to make a demonstration that the terms of

the permit issued by IEPA will result in a violation of the Act or Board regula-

tions

. The Board is persuaded that the terms of the permit itself, specifically Spe-

cial Conditions 11 and 12 (See supra pp

. 13-17), which require a specific biological

inventory and monitoring, will ensure that the requirements of the Act, Board regu-

lations, and NPDES permit are met, and that the stream quality of the unnamed tribu-

tary and Little Vermilion River is not degraded

.

The Board finds that the information submitted by Black Beauty to IEPA, including

the Study, provided IEPA with enough substantive information upon which it could

rely in issuing a permit that is protective of water quality

. Moreover, IEPA per-

formed its own evaluations, including a nondegradation analysis, that support issu-

ance of the permit

. The Board concludes that Prairie Rivers has not proven that the

permitted discharge will harm beneficial uses or cause violations of water quality

standards

. Therefore, the Board finds that the permit as issued will not violate the

Act or Board regulations

.

Whole Effluent Toxicity Monitoring

*23 Prairie Rivers' Argument

. Prairie Rivers argues that the NPDES is flawed in

that it fails to require whole effluent toxicity (WET) monitoring and biological

monitoring . Prairie Rivers Br

. at 25 . Prairie Rivers argues that this monitoring is

important given the potential effluent characteristics and the importance of the

Little Vermilion River . Id .

At hearing, Moore described WET testing as follows

:

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Whole effluent toxicity testing differs from the normal chemical

-- monitoring

chemical parameters in the permit

. When you're monitoring specific parameters, spe-

cific chemicals within a permit, you're basically measuring concentrations of a pol-

lutant and comparing them against a standard which has been established and assumed

to be protective of various uses of the stream

.

It's commonly accepted that those standards are certainly not assumed to be pro-

tective of every use of every aquatic organism known to man because, quite honestly,

they haven't been tested .

Whole effluent toxicity testing is done in order to gauge the toxicity of the ef-

fluent in its entirety

. All chemicals present at one time in specific

-- in whatever

concentrations they happen to be present in, you'll then be able to measure the ac-

tual toxicity of the effluent itself, not simply measuring the chemical concentra-

tions and comparing those against some standard which has been assumed to be pro-

tective

. It's really an important backstop

. It's a well accepted methodology which

U .S

. EPA encourages the use of in numerous permits

. And, in fact, based on some ini-

tial research which Prairie Rivers conducted, we've even found other mines in the

country which require whole effluent toxicity testing . Tr

. at 26-27

Prairie Rivers maintains that WET monitoring should be required because coal mines

are capable of producing a large variety of pollutants with a potentially unknown

toxicity . Prairie Rivers Br . at 25

. At hearing, Moore testified that WET monitoring

is frequently required, "it seems to be an accepted methodology of

-- USEPA,

Illinois EPA requires whole effluent toxicity testing in permits on a routine basis,

and whole effluent toxicity testing has been required around the country for mines

of various types

." Tr . at 34

. However, upon cross examination, Moore conceded that

the only NPDES permit of which he was aware in which WET monitoring was required was

a permit issued in the State of Alaska

; he was not aware of any Illinois NPDES per-

mits requiring WET monitoring . Tr . at 62-63

.

Regarding biological monitoring, Prairie Rivers testified that although at least

three protected species reside in the Little Vermilion River near the mine, no bio-

logical inventories of the unnamed tributary have been done

. Tr . at 35 . Prairie

Rivers contends that biological monitoring should have been done prior to the issu-

ance of the permit . Id

. Furthermore, Prairie Rivers maintains that DNR shares simil-

ar concerns regarding the potential harm from mine discharge on aquatic life in the

receiving stream . Prairie Rivers Resp

. Br . at 24-25 . Prairie Rivers notes that DNR

refers to the Little Vermilion River as one of the ten most outstanding aquatic eco-

systems in the state (Tr

. at 27) and is therefore deserving of protection

.

2 4 IEPA's Response

. IEPA rejects Prairie Rivers' contention that WET monitoring

would be beneficial for the Black Beauty discharge

. Specifically, IEPA testified

that WET monitoring is less reliable than other types of monitoring for evaluating

water quality and effluent characteristics during short-term wet weather discharges

.

Tr

. at 122 . During oral argument, IEPA clarified a statement in its brief by stating

that WET monitoring and other forms of biological monitoring are not typically ap-

plied to discharges that occur during wet weather conditions only

. IEPA Br . at 21 ;

Oral Arg . Tr . at 16

. IEPA testified that WET monitoring is typically used for con-

tinuous or non-episodic discharges . Tr . at 120 . IEPA noted that it utilizes WET

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testing as

a screening mechanism in conjunction with other types of monitoring

. Tr .

at 119- 20

. IEPA maintained that chemical monitoring, of the type required in Black

Beauty's NPDES permit, is more appropriate for intermittent and infrequent dis-

charges than WET monitoring would be

. Tr . at 122 .

Furthermore, regarding biological monitoring, IEPA maintains that the broad range

chemical monitoring required by the permit is more proven and appropriate for inter-

mittent and infrequent discharges

. Tr . at 122 . Moreover, IEPA clarified that the

permit does require Black Beauty to perform "introductory or preliminary biological

inventories" to help maintain the integrity of the receiving stream Tr

. at 123 . IEPA

explained that supplemental biological monitoring would be required if, through mon-

itoring, exceedences of certain specified conservative triggers are detected

. Id .

Special Condition 12 of the final NPDES permit (supra at pp

.14-17) contains the bio-

logical monitoring requirements and the trigger levels that, if exceeded, would re-

quire further monitoring by Black Beauty

. According to IEPA, Special Conditions 11

and 12 were specifically added to the NPDES permit in response to the concerns

raised by DNR regarding the need to protect aquatic life within the receiving

stream . Tr

. at 190-191 . In fact, IEPA testified that Special Conditions 11 and 12

were developed in collaboration with DNR

. Id .

Black Beauty's Response

. Black Beauty argues that issues concerning WET monitoring

and biological monitoring should not be terms of the permit itself, but rather re-

late only to how it will comply with the permit and how IEPA (or a third party) can

enforce the permit

. Black Beauty Br . at 26

. Additionally, Black Beauty contends that

these issues were fully addressed by IEPA's testimony at hearing and were shown to

be without merit

. Black Beauty Br . at 27 .

Board's Finding

. As an initial matter, the Board notes the differences between WET

monitoring and biological monitoring

. Specifically, while WET monitoring involves

the evaluation of the effluent impact on aquatic organisms before it reaches the re-

ceiving waters, biological monitoring is concerned with the assessment of the actual

impact of the effluent on aquatic life after entering the receiving stream

.

+25 The Board also notes that USEPA regulations require NPDES permits to include a

limit for whole effluent toxicity only if the permitting authority determines that

there exists a reasonable potential for causing or contributing to a violation of a

state's effluent toxicity criterion . See 40 C .F .R . 122 .44(d)(1)

. Prairie Rivers has

produced no evidence in this proceeding to show that such a potential exists

.

As for biological monitoring, the Board observes that Special Conditions 11 and 12

provide a balanced approach for addressing any potential concerns regarding the bio-

logical integrity of the receiving stream . Considering both the infrequent nature of

Black Beauty's discharges, and the nature of the anticipated contaminants, the Board

finds that the permit's comprehensive chemical monitoring scheme, coupled with the

conservative "warning" triggers, afford sufficient protection from any potential

threat to the biological integrity of the receiving stream

.

The Board further finds that a permit condition requiring Black Beauty to perform

WET monitoring is not appropriate given the infrequent nature of the discharge

. Fur-

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ther, the Board finds that Prairie Rivers has produced no evidence in the record

that would demonstrate that the permit, as issued, would cause a violation of any

water quality standard

. Finally, the Board finds that the biological monitoring re-

quirements specified at Special Conditions 11 and 12 provide sufficient protection

from any potential threat to the biological integrity of the receiving stream

.

CONCLUSION

For the reasons expressed herein, the Board concludes that Prairie Rivers has

failed to show that the NPDES permit as issued by IEPA to Black Beauty on December

27, 2000, would violate the Act or Board regulations . Therefore, the permit is up-

held .

IT IS SO ORDERED .

Section 41 of the Environmental Protection Act

(415 TICS 9/41 (2000)) provides for

the appeal of final Board orders to the Illinois Appellate Court within 35 days of

the date of service of this order . Tlli

.noi .s

Sunreme Court

. Rule 335 establishes such

filing requirements

. See 172 Ill . 2d R . 335 ; see also 35 Ill, Adm . Code 101

.520, Mo-

tions for Reconsideration .

E .Z . Kezelis

FN1

. The Board acknowledges, however, that a copy of IEPA's brief was hand delivered

to the Board's Springfield office on May 29, 2001 .

FN2

. IEPA's administrative record is referred to as "R . at

.11

FN3

. The hearing transcript is referred to as "Tr . at

FN4

. Black Beauty's hearing exhibits are referred to as "Black Beauty Exh

. _

IEPA's hearing exhibits are referred to as "IEPA Exh

. _ The supplement to the

hearing record (filed via facsimile by Black Beauty on May 29, 2001) is referred to

as "Supp . at

'

Prairie Rivers' petition for review is referred to as "Pet . at

_ "

Prairie Rivers' first brief is referred to as ""Pet . Br . at

" Black

Beauty's brief is referred to as "Black Beauty's Br

. at

" IEPA's brief is re-

ferred to as "IEPA Br

. at

" Vermilion Coal's amicus brief is referred to as "Ver-

milion Br . at

'

IERG's amicus brief is referred to as "IERG Br

. at

' Prairie

River's reply brief is referred to as "Reply Br . at

FNS

. The July 12, 2001 transcript from the oral argument will be referred to as "Or-

al Arg . Tr . at

.11

FN6

. "Advent Study" refers to the report prepared for Black Beauty by Advent Group,

Inc . dated October 20, 2000

. The report is marked as petition exhibit A .

2001 WL 950017 (Ill .Pol

.Control .Bd .)

END OF DOCUMENT

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Illinois Pollution Control Board

State of Illinois

Page 1

+1 VILLAGE OF LAKE BARRINGTON, CUBA TOWNSHIP, PRAIRIE RIVERS NETWORK, SIERRA

CLUB, BETH WENTZEL AND CYNTHIA SKRUKRUD, PETITIONERS

v

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY AND VILLAGE OF WAUCONDA, RESPONDENTS

PCB 05-55

SLOCUM DRAINAGE DISTRICT OF LAKE COUNTY, ILLINOIS, PETITIONER

V .

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY AND VILLAGE OF WAUCONDA, RESPONDENTS

PCB 05-58

AL PHILLIPS, VERN MEYER, GAYLE DEMARCO, GABRIELLE MEYER, LISA O'DELL, JOAN

LESLIE, MICHAEL DAVEY, NANCY DOBNER, MIKE POLITIO, WILLIAMS PARK IMPROVEMENT

ASSOCIATION, MAT SCHLUETER, MYLITH PARK LOT OWNERS ASSOCIATION, DONALD KREBS,

DON BERKSHIRE, JUDY BRUMME, TWIN POND FARMS HOMEOWNERS ASSOCIATION, JULIA

TUDOR, AND CHRISTINE DEVINEY, PETITIONERS

V .

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY AND VILLAGE OF WAUCONDA, RESPONDENTS

PCB 05-59

April 21, 2005

(Third-Party NPDES Permit Appeal - Water)

Percy L

. Angelo of Mayer, Brown, Rowe, & Maw, LLP Appeared on Behalf of the Peti-

tioners in PCB 05-55

Bonnie MacFarlane of Law Offices of Bonnie MacFarlane, P .C

. Appeared on Behalf of

Slocum Drainage District of Lake County, Illinois

Jay Glenn Appeared on Behalf of the Petitioners in PCB 05-59

Sanjay K

. Sofat of the Illinois Environmental Protection Agency Appeared on Behalf

of Respondent ; and

Willliam D

. Seith of Total Environmental Solutions Appeared on Behalf of Village of

Wauconda

OPINION AND ORDER OF THE BOARD

Multiple petitioners challenged the Illinois Environmental Protection Agency's

(Agency) August 23, 2004 determination to grant a National Pollutant Discharge Elim-

ination System (NPDES) permit to the Village of Wauconda (Wauconda)

. Some of the pe-

titioners filed a stipulation and settlement reached with Wauconda, while the re-

maining petitioners continue to challenge the issuance of the NPDES permit . The

Board will not adopt the stipulation and settlement . The Board finds that the argu-

ments challenging the issuance of the permit do not succeed and, therefore, the

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Agency properly issued the permit

. The opinion will set forth the background, facts,

and issues in this proceeding

. The opinion will then summarize the arguments of the

parties under each issue and explain the Board's decision on each of the issues

.

PROCEDURAL BACKGROUND

On September 17, 2004, Village Of Lake Barrington, Cuba Township, Prairie Rivers

Network, Sierra Club, Beth Wentzel and Cynthia

Skrukrud ( Municipal-Environmental pe-

titioners) filed a petition asking the Board to review an August 23, 2004 determina-

tion by the Agency

. On September 27, 2004, Slocum Lake Drainage District of Lake

County, Illinois (Slocum) filed a petition for review of the Agency's decision

. Also

on September 27, 2004, Al Phillips, Vern Meyer, Gayle Demarco, Gabrielle Meyer, Lisa

O'Dell, Joan Leslie, Michael Davey, Nancy Dobner, Mike Politio, Williams Park Im-

provement Association, Mat Schlueter, Mylith Park Lot Owners Association, Donald

Krebs, Don Berkshire, Judy Brumme, Twin Pond Farms Homeowners Association, Julia Tu-

dor, and Christine Deviney (Residents) filed a petition for review of the Agency's

decision . (collectively, petitioners)

. On October 7, 2004, the Board accepted the

petitions for hearing in a single order, thus consolidating the cases

.

*2 On January 11, 2005, the municipal-Environmental petitioners along with Wauconda

filed a stipulation

. The stipulation notes that "upon the Pollution Control Board's

acceptance and approval of the terms of this Stipulation" the Municipal-Environ-

mental petitioners will ask the Board to dismiss the permit appeal in PCB 05-55

.

Stip . at 8

. The stipulation further indicates that "if the Board does not approve

and accept" the stipulation, the stipulation will remain binding on the parties to

the stipulation . Stip

. at 12 . On February 3, 2005, the Board declined to accept the

stipulation and settlement

.

On February 10, 2005, hearing was held before Board Hearing Officer Bradley P

. Hal-

loran

. The parties filed simultaneous briefs on February 25, 2005, [FN1) and simul-

taneous replies on March 7, 2005 .

Wauconda's brief includes a motion to dismiss the petition in PCB 05-59 and a mo-

tion to dismiss or for summary judgment in PCB 05-59 . WBr . At 1-9

. Pursuant to the

Board's rules both the motions have been filed untimely

. See 35 111 . Adm . Code

101 .506 and 101 .516(a) .

Furthermore, the case has now been fully briefed and is ripe

for decision on the merits

. Therefore, the Board denies the motions and will decide

the case on the merits of the arguments .

On March 2, 2005, the Board received a public comment from David J

. Suchor . Mr .

Suchor indicated that the Mylith Park Lot Owners Association had not voted to become

a part of the permit appeal and asked that the Mylith Park Lot Owners Association be

removed from the proceeding . PC 1 . On March 10, 2005, the Board received a public

comment from Mike Politio . Mr . Politio indicated that Mr . Jay Glenn no longer rep-

resents either Mr

. Politio or the Williams Park Improvement Association . PC 2

. On

March 28, 2005, the Williams Park Improvement Association filed an additional com-

ment indicating that Mr

. Glenn does represent the Williams Park Improvement Associ-

ation . PC 3

. Because the Board today decides this case, the Board finds that the My-

0

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lith Park Lot Owners Association and Mr

. Politic's requests are moot .

FACTS

On March 24, 2003, the Agency received Wauconda's application for modification of

Wauconda's NPDES permit

. R . at 1608-69

. Wauconda proposes to expand the existing

wastewater treatment plant in two phases . R

. at 1608 . In phase one, Wauconda plans

to expand from a design average flow of 1

.4 million gallons per day (mgd) to 1

.9 mgd

with design maximums changing from 4

.0 mgd to 5

.963 mgd . R . at 1614, 2213 . In phase

two, Wauconda will expand the plant to a design average flow of 2

.4 mgd and a design

maximum flow of 7.93

mgd . Id .

Wauconda's treatment plant is located at 302 Slocum Lake Road and the effluent from

the plant discharges into Fiddle Creek . R

. at 2213 . Fiddle Creek is classified as a

general use stream, which ultimately discharges into the Fox River

. Id . Wauconda has

used this same discharge point since 1983

. Id .

Prior to using the current discharge point, Wauconda discharged effluent into the

Bangs Lake Drain Creek, which flows into Slocum Lake

. R . at 2213

. Slocum Lake dis-

charges into the Slocum Drainage ditch which joins the Fox River

. Id . In 1977, Wauc-

onda was granted a variance from the phosphorus standard

. R . at 2213 ; see also Vil-

lage of Wauconda v

. IEPA, PCB 11-125 (Aug

. 4, 1977) . The discharge was move in 1983

based on another Board order . R

. at 2213 ; See also Village of Wauconda v

. IEPA, PCB

83-237 (Jan

. 9, 1986) .

+3 Fiddle Creek is a part of a system that includes wetlands and man-made drainage

ditches . R

. at 2213

. Fiddle Creek flows through a man-made silt trap and then joins

into a wetlands complex that has been channelized

. Id

. The drainage ditch flows west

for approximately 625 feet, south for approximately 1,500 feet, west for approxim-

ately 5,250 feet, south for approximately 1,250 feet and west for approximately

1,125 feet where the ditch joins the Slocum Lake Drain before entering the Fox

River . R . at 236-38

.

The land use surrounding Fiddle Creek has changed from farmland to highly populated

residential . R . at 2213

. Fiddle Creek passes through several subdivisions before

discharging into the Fox River about 2

.4 miles from Wauconda's outfall

. Id .

After receiving the NPDES permit application, the Agency conducted a general review

on April 9-10, 2003 . R . at 1673-76

. Starting on July 25, 2003, the Agency provided

public notice in the Wauconda Leader of the draft NPDES permit

. R . at 2212 . On July

23, 2003, the Agency mailed public hearing notices to local legislators, county and

municipal officials, environmental organizations, and interested citizens

. Id .

Prairie Rivers Network also provided notice of the public hearing by sending the no-

tice to the "listserv" to assist the Agency in notifying the public

. Id . From August

1, 2003 through September 7, 2003, the Agency published notice of the public hearing

in four separate newspapers

. Id .

A public hearing was held after proper newspaper notice on September 9, 2003

. R . at

2212

. Approximately 200 participants attended the public hearing

. Id

. On October 8,

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2003,

the Agency posted the transcript of the public hearing on the Agency's web-

site

. The Agency accepted public comment until October 31, 2003

. Id . On August 23,

2004, the Agency issued the NPDES permit

. R . at 2251 .

STATUTORY BACKGROUND

Section 40(e)(1) of the Environmental Protection Act (Act)

(415 ILCS

5/40(e)(1)

(2002))

allows certain third parties to appeal Agency determinations to grant NPDES

permits

. The third party's petition to the Board must contain :

a demonstration that the petitioner raised the issues contained within the peti-

tion during the public notice period or during the public hearing on the NPDES per-

mit application, if a public hearing was held

; and

a demonstration that the petitioner is so situated as to be affected by the per-

mitted facility .

415 ILCS 5/40(e)(2) (2002) .

Pursuant to section 40(e)(3) of the Act

(415 ILCS 5/40(e)(3) (2002)), petitioners

have the burden of proof and hearings "will be based exclusively on the record be-

fore the Agency at the time the permit or decision was issued

." 415ILCS

5/40(e)(3)

(2002) .

Section 39(a) of the Act

(415 TT,CS 5/39(a) (2002))

provides that the Agency has a

duty to issue a permit upon proof that the facility will not cause a violation of

the Act or Board regulations

. Section 39(a) further provides that

"[i)n making de-

terminations on permit applications . .

. the Agency may consider prior adjudications

of noncompliance" with the Act

. 415 ILCS

4/39(a) (2002 State Bar Edition, 2003

Supp .)

STANDARD OF REVIEW

*4 The Board's scope of review and standard of review are the same whether a permit

applicant or a third party brings a petition for review of an NPDES permit

. Prairie

Rivers Network v

. PCB et al .,

335

Ill . Ann .

3d 391, 401 ; 781 N.F .2d 372,

380 (4th

Dist . 2002) and oli

and & Gravel Co . v . PCB . 163

T11,

Ann . 3d

830 . 833,

516

N .E .2d 955 . 958 (3rd Dist . 1987),

citing

A v

2d 18

(1

fist

983) .

The distinction between the two types of NPDES permit ap-

peals is which party bears the burden of proof

. Under Section 40(e)(3) of the Act,

in a third party NPDES permit appeal, the burden of proof is on the third party

. 415

ILCS 5/40(e)(3) (2002) ;

1

7 1 N

72

380 .

Under Section 40(a)(1) of the Act, if the permit applicant appeals the permit,

the burden of proof is on the permit applicant . 415 ILCS

5/40(a)(1) (2002) .

The question before the Board in permit appeal proceedings is

: (1) whether the ap-

plicant proves that the application, as submitted to the Agency, demonstrated that

no violation of the Act would have occurred if the requested permit had been issued

;

or (2) whether the third party proves that the permit as issued will violate the Act

or

5B- Pr 'r R

s

1 .

0 7

.E

.

d

2

. The Agency's

denial letter frames the issues on appeal and the burden of proof is on the peti-

tioner . ESG

Watts, Inc . v, PCB, 286 T11, Ann . 3d 325,

676

N .F.2d

299 (3rd Dist,

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1997) .

The Board's review of permit appeals is limited to information before the Agency

during the Agency's statutory review period, and is not based on information de-

veloped by the permit applicant, or the Agency, after the Agency's decision

. Prairie

Rivers Network v

. IEPA and Black Beauty Coal Company, PCB 01-112 (Aug

. 9, 2001)

aff'd at

5 Il

4 1 . 7

N E 2

D

s12 ; Alton

Packaqinq Corn . v

. PCB . 162 Tll . App . 3d 731 7 8

916 N F 2d 275 . 280 (5 h Dist

.

1987) .

ISSUES

The parties have raised several issues for Board decision in this proceeding

. The

first issue that the Board will address is whether or not the stipulation and set-

tlement agreement entered into by Wauconda and the Municipal-Environmental petition-

ers should be accepted

. The second issue is the sufficiency of the Agency's antide-

gradation analysis

. The third issue is the lack of a pretreatment program included

in the permit

. The fourth issue is the Agency's evaluation of prior permit viola-

tions in determining to issue a permit

. The fifth issue is whether the Agency denied

due process to the Residents

. The Board will address each issue in turn below

.

DISCUSSION

The Board will first summarize the general arguments put forth by the Agency

. Then

the Board will organize the discussion by issue

. Each issue will be set forth fol-

lowed by the arguments of the parties

. The Board will conclude each section with a

discussion of the Board's findings on the particular issue raised

.

Agency's General Arguments

*5 The Agency argues that the burden of proof is on the Residents and Slocum to es-

tablish that the permit as issued would violate the Act or Board regulations

. Ag .Br .

at 13

. The Agency opines that "as long as there is substantial evidence in the re-

cord" the Agency's decision must be affirmed . Ag .Br

. at 14 . The Agency asserts that

the Residents and Slocum have made no attempt to establish a lack of evidence in the

record supporting issuance of the permit and in fact waived their right to present a

case or cross-examine Agency staff

. Ag .Br . at 15 . The Agency notes that the Resid-

ents and Slocum also did not present expert witnesses or scientific evidence to es-

tablish shortcomings in the permit that would cause a violation of the Act or Board

regulations . Id .

The Agency maintains that mere dislike of the NPDES permit and permit conditions or

mere allegations of noncompliance with the law does not satisfy the burden of proof

.

Ag.Br . at 15 . The Agency asserts that the petitions and the failure of Residents and

Slocum to present any evidence at the Board's hearing demonstrate that Residents and

Slocum mere belief is not based on any scientific findings that the water quality

standard would not be met . Ag

.Br . at 16 .

Board Analysis

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The

Board agrees with the Agency that the petitioners in a third party NPDES permit

appeal bear the burden of establishing that the permit as issued would violate the

Act or Board regulations

. The Board also agrees that mere dislike is not sufficient

to satisfy that burden

. In this case, the Board finds that petitioners must estab-

lish that the permit issued to Wauconda will violate the Act or Board regulations in

order for the Board to find for the petitioners in this matter

.

Stipulation and Settlement Agreement

The first issue the Board will examine is whether or not the stipulation and set-

tlement agreement entered into by the Municipal-Environmental petitioners and Wauc-

onda should be adopted by the Board

. The following paragraphs summarize the posi-

tions of the parties

. Then the Board will discuss the Board's decision on this is-

sue

.

The Municipal-Environmental Petitioners' Argument

The Municipal-Environmental petitioners believe that the settlement agreement

reached "involves an appropriate resolution of the issues" raised in this

p roceed-

ing

. 05-55Br . a t 5

. The Municipal-Environmental petitioners ask that the Board "con-

firm that the resolution reached is appropriate" and that the Board use the resolu-

tion as the basis for the Board's decision in this proceeding

. 05-55Br . at 5-6 .

The Municipal-Environmental petitioners approached settlement of the issues between

them and Wauconda by adopting intergovernmental agreements

; however, there was con-

cern as to how to include the environmental groups and

individuals

. 05-55Br . at 10 .

The Municipal-Environmental petitioners decided that a stipulation and settlement

document could be used

. Id

. Further, the stipulation was a mechanism that would al-

low the agreement to be presented to the Board, according to Municipal-Environmental

petitioners . Id .

*6 The Municipal-Environmental petitioners ask that the Board review the issues

raised in the proceeding and based on the record, exercise the Board's independent

judgment to accept the conclusions and resolutions in the

stipulation . 05-55Br

. a t

10

. The Municipal-Environmental petitioners accept that the Board is not bound by

the resolutions reached in the stipulation

; however, they believe that the Board

will find that the record in this proceeding supports the resolution of the issues

set forth in the stipulation

. Id . The Municipal-Environmental petitioners seek to

have the Board accept the stipulation in the same manner as stipulations are accep-

ted in enforcement cases . Id .

The Municipal-Environmental petitioners suggest that accepting stipulations in

third-party NPDES permit appeals is a way of encouraging responsible

settlements

.

05-55Br . at 11

. Settlement would involve the public as much as possible, but would

not compromise the obligation of the Board to review permit appeals, argue the Muni-

cipal-Environmental petitioners . Id

. The Municipal-Environmental petitioners also

believe that it is significant that Wauconda has agreed "to accept a revised permit

incorporating the additional limitations identified, insuring their incorporation in

a permit document with appropriate public availability

." Id .

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Wauconda's

Argument

Wauconda states

that Wauconda

"fully understands and accepts the Board's decision

to decline acceptance of the stipulation" without the Board conducting a

r eview .

WBr . at 16

. Wauconda is bound by the terms of the agreement and "is prepared to ac-

cept a Board order in this case that is consistent" with the stipulation

. Id .

Agency's Argument

The Agency states that as the Municipal-Environmental petitioners and Wauconda have

"expressed their desire to be bound by the terms of the stipulation" and the Agency

does not address the issues raised by the Municipal-Environmental petitioners

. Ag .

Br . at 8 .

Board Analysis

As the Board stated in the February 3, 2005 order, the Board is reluctant to accept

settlement agreements in permit appeals

. The Board has stated :

The Board has difficulty in dealing with settlement in permit appeal cases which

involve the Agency issuance of negotiated permit containing conditions for which no

record exists "setting out sufficient technical fact and legal assertions to allow

the Board to exercise its independent judgment and to make proper findings of fact

and conclusion of law

." Caterpillar Tractor Co . v

. IEPA, PCB 79-180 (June 2, 1983)

slip op at 1-2

. The Board has not issued orders incorporating the terms of such

stipulations as the Board does in enforcement cases

. Meyer Steel Drum, Inc

. v . IEPA,

PCB 92-76 (Aug . 13, 1992) ; General Electric Company v

. IEPA, PCB 90-65 (Sept

. 12,

1991) .

The Board is not persuaded that the Board should accept the stipulation filed in

this proceeding

. The Board is reluctant to adopt this procedure for several reasons

.

First, the settlement would have Wauconda seek modification of the NPDES permit

(05-55Br . at Attach A pgs

7-8)

.

Acceptance of a settlement wherein a modified permit

must be sought might be interpreted as the Board approving the modifications Wauc-

onda must seek by agreement, before the application is filed

. In addition, the

Agency, who is responsible for reviewing all permit applications, including any that

the settlement agreement might require, is not a party to the stipulation

. Finally,

the stipulation represents an agreement between Wauconda and the Municipal-En-

vironmental petitioners that would require modification of the permit at issue in

this proceeding

. The Board's acceptance of the settlement might also be viewed as

agreement by the Board that the permit at issue was somehow insufficient

. Therefore,

the Board declines to accept the stipulation and settlement

.

*7 The Municipal-Environmental petitioners did not present any argument in their

closing brief except to argue for the adoption of the stipulation and settlement

agreement

. The Board finds that the Municipal-Environmental petitioners have waived

any argument in opposition to the issuance of the permit

. See e .g . People v . Economy

Plating, PCB 97-69 (May 6, 2004) ; People v

. Clark Refining & Marketing, Inc

., PCB

95-163 (Sept . 17, 1998)

. Therefore, the Board finds that the Municipal-Environmental

petitioners have not established that the permit as issued would violate the Act or

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Board regulations

.

Agency's Antidegradation Analysis

The second issue raised concerns the sufficiency of the Agency's antidegradation

analysis

. The Board will summarize the arguments of the parties and then analyze the

Board's findings .

Slocum's Argument

Slocum argues that the Agency's antidegradation assessment is insufficient and does

not comply with relevant

rules . 05-58Br . at 8

. Slocum asserts that the Agency relied

on water quality data from a stream survey conducted on September 15, 1993 (1993

Survey) . Id

. The 1993 survey found "fair environmental conditions in Wauconda Creek

with minor impact from the Wauconda" discharge

. R

. at 995, 1677 ; 05-58Br . at 8-9 .

The 1993 survey identified levels of conductivity, nitrate plus nitrite, phosphorus,

sodium, potassium, boron, strontium, and oil downstream of the Wauconda outfall, ac-

cording to Slocum . R . at 928 ;

05-58Br . at 9 . Slocum maintains that despite the find-

ings of the 1993 Survey, none of the contaminants were evaluated by the Agency as a

part of the antidegradation analysis performed in 2003

. Id . Slocum further notes

that the Agency's 2003 antidegradation assessment indicates that the stream will ex-

perience increase in loading over time, because of the discharge

. R . at 995 ;

05-58Br

. at 9

. Slocum asserts that the relevant data basis date for the antidegrada-

tion assessment should be November 28,

1975 . 05-58Br . at 9 .

Slocum asserts that the water quality was not evaluated based on current data by

the Agency and that the engineers hired by the Lake County Forest Preserve District,

Lake Barrington and Cuba Township disagree with the Agency's

analysis . 05-58Br

. a t

11

. Lake County Forest Preserve hired Baetis Environmental Services, Inc

. (Baetis)

and Lake Barrington and Cuba Township hired Huff & Huff (Huff)

. 05-58Br . at 11 and

14

. The report prepared by Baetis, which delineates the information used in his re-

view, is located in the record at pages 314-36

. The report from Huff is found in the

record at pages 2106-7

.

Baetis indicated that the effluent is causing downstream oxygen deficits and the

proposed limit for dissolved oxygen will not likely be met

. R . at 333 ; 05- 58Br

. at

12

. Baetis attributed water quality violations for dissolved oxygen to the discharge

from the Wauconda plant

. R, at 321 ; 05-58Br . at 12

. Baetis further indicated that

the Agency's antidegradation assessment did not properly characterize the affected

water body

. Id

. Baetis opined that the additional biochemical oxygen demand waste-

loads will degrade the dissolved oxygen resources in the creek beyond existing con-

ditions . Id .

*8 Huff found the same results as Baetis noting that their analysis had found dis-

solved oxygen levels of 5

.Omg/L below the Wauconda outfall and the entire Fiddle

Creek . R . at 2106 ; 05-58Br . at 14

. Huff also measured total phosphorus at an average

of 3 .9mg/L and nitrates were 18

.0 mg/L in Fiddle Creek . Id . Huff concludes that the

current levels of dissolved oxygen, phosphorus, and nitrates are sufficient to list

Fiddle Creek as an impaired stream

. R . at 2106-07 ; 05-58Br . at 14 .

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Slocum argues that the Agency utilized data that was over ten years old in making

the antidegradation assessment

. 05-58Br . a t 15

. Further, Slocum asserts the Agency

defers issues on nitrogen and phosphorus because state standards will be adopted in

the future . Id

. Slocum maintains that the Agency's antidegradation assessment does

not comply with the Board's rules . Id

. Slocum opines that the Board should scrutin-

ize the insufficient data and require the Agency to conduct additional evaluations

of recent data to comply with the antidegradation rules . 05-58Br . at 16 .

Slocum asserts that the antidegradation assessment conducted by the Agency was in-

adequate and inconsistent with the findings and conclusions of other

p rofessionals .

05-58Br

. at 22

. Slocum opines that because of the more recent data reviewed and ana-

lyzed, from more current sources, the Board can require the Agency to reinvestigate

and to use more current data . Id .

Residents' Arguments

The Residents argue that where an existing use is established, that use must be

protected even if the use is not listed in the water quality standards as a desig-

nated use

. 05-59Br . at 26, 28 . Residents assert that in no case may water quality be

lowered to a level which would interfere with an existing use

. 05- 59Br . at 28 . Res-

idents maintain that the antidegradation analysis was insufficient because the ana-

lysis failed to address baseline requirements from November 28, 1975

. Id . Further,

Residents argue that the antidegradation analysis failed to evaluate anticipated be-

nefits to the residents in the Fiddle Creek wetlands, if any . 05-59Br

. at 29 .

The Residents also take issue with the Agency's use of water quality data from the

1993 Survey . 05-59Br . at 29

. The Residents note that the 1993 Survey found fair con-

ductivity, nitrate plus nitrate, phosphorus, sodium, potassium, boron, strontium,

and oil downstream of the Wauconda outfall . R . at 995-1001

; 05-59Br . at 29 . Yet, the

Agency did not evaluate any of these contaminants, according to the

Residents .

05-59Br . at 29 .

The Residents argue that a wetland specialist with the Illinois Department of Nat-

ural Resources (IDNR) advised the Agency that the amount of additional water volume

added to the wetland from the increased discharge would be detrimental to the wet-

land . R . at 1990 ; 05-59Br . at 30 . The Residents assert that the Agency then sought

another opinion from a non-IDNR wetland specialist who was "skeptical" of the IDNR

a ssessment . 05-59Br . a t 30 . According to the Residents, IDNR thought Fiddle Creek

Wetlands had threatened and endangered species .. R . at 1990 ; 05-59Br . at 30 .

Wauconda's Arguments

*9 Wauconda argues that the Agency revised the permit in response to concerns about

the antidegradation analysis that were raised during the hearing and public comment

before the Agency . R . at 2186-2262 ; WBr . a t 11-14 . Specifically Wauconda points out

that the Agency modified the permit by

: (1) adding phosphorus removal as a permit

condition ; (2) adding a permit condition that Wauconda conduct a study of dissolved

oxygen nutrients in Fiddle Creek ; and (3) adding dissolved oxygen limits as a permit

condition . Id . Furthermore, Wauconda asserts that the Agency correctly noted that

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the technical

reports

submitted by Wauconda adequately demonstrate that the NPDES

discharge has not had an adverse impact on the downstream wetlands

. R . at 2232 ; WBr .

at 12

. Wauconda points out that the Agency also concluded that the discharge will

not impact the Fox River . R

. at 2240 ; WBr . at 13 .

Agency's Argument

The Agency agrees that the existing uses of Fiddle Creek, as of November 28, 1975,

must be protected pursuant to the Board's regulations on antidegradation

. Ag .Br . at

22

. However, the Agency asserts that the Board regulations do not require the Agency

to compare physical, chemical, or biological data that existed on or after November

28, 1975 . Id

. The Agency claims that the regulations mandate that the uses actually

attained on or after November 28, 1975, must be maintained and protected, not that

the physical, chemical, or biological data be identical

. Id . Thus, the Agency main-

tains that Residents and Slocum must prove that the Wauconda effluent, as permitted,

would impair the existing uses of Fiddle Creek and Residents and Slocum have not

done so

. Ag.Br . at 22-23 .

As to the claim that the permitted discharge from the Wauconda plant will impair

the existing uses of Fiddle Creek, the Agency asserts that the Residents and Slocum

did not delineate how this conclusion was made

. Ag .Br . at 22 . Furthermore, the

Agency notes that the Residents and Slocum rely on the KOT Environmental Consulting,

Inc

. report (KOT report) (R . at 470-78)

; however, according to the Agency that re-

port also does not list any assumptions or calculations leading to the conclusion in

the report

. Id .

The Agency believes that the loss of wetlands discussed by the Residents, Slocum,

and in the KOT report is more likely a result of restoration of the drainage canal

in 1997

. Ag .Br . at 23

. The drainage canal was restored to allow for better drainage

of the wetlands, according to the Agency

. Id

. Therefore, the Agency argues that the

loss of 180 acres of wetlands is more probably the result of the drainage canal than

any discharge by Wauconda

. Id

. The Agency also consulted with IDNR and an independ-

ent wetlands specialist to explore other possible impacts of the discharge pertain-

ing to nutrient loading and hydraulic flow, and determined an ecological risk as-

sessment was not warranted . R

. at 1433-34 .

The Agency, in performing the antidegradation analysis, used as much data as was

available within the Agency, provided by the applicant or the public

. Ag .Br

. at 23 .

The Agency states that at no point did the Agency use the 1993 Survey as "the stat-

utory benchmark" for the antidegradation analysis

. Id

. The Agency notes that the

Residents and Slocum point to findings in the 1993 Survey concerning several para-

meters

; however, the Residents and Slocum do not demonstrate that the parameters vi-

olated the applicable water quality standards

. Id

. Thus, even given the existence of

those parameters, the Agency asserts that the Residents and Slocum have not met

their burden of proof and established that the permit would violate the Act or Board

regulations

. Id

. Furthermore, the Agency argues that the concentrations of the para-

meters are typical of domestic wastewater plants throughout the State and the con-

centrations of the parameters do not violate the water quality standards

. Ag .Br . at

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24

.

*10 The Agency next addresses the issue of dissolved oxygen levels

. Ag .Br . at 24 .

The Agency states that the Agency reviewed the data in the record and concluded that

the low dissolved oxygen levels in the receiving stream were caused by algae

. Id .

The Agency states that the findings concerning the levels of dissolved oxygen are

consistent with streams that pass through wetlands . Id

. The Agency added conditions

to the permit setting a phosphorus limit and requiring that the dissolved oxygen wa-

ter quality standard be met at the discharge point . Id . The Agency also added condi-

tions to study dissolved oxygen and nutrient effects downstream from the outfall .

The study condition enables the Agency to reopen the permit and add additional con-

trols if warranted . R . at 2189

. The Agency asserts that the Residents and Slocum

have failed to prove that the discharge from the Wauconda plant will cause or con-

tribute to the violation of the dissolved oxygen water quality standard

. Ag .Br . at

25 .

Board Analysis

The Board's rules require the Agency to perform an antidegradation review for modi-

fied permits . 35 I11 . Adm .

Code 302 .105(f) . The purpose of the antidegradation sec-

tion is :

to protect existing uses of all waters of the State of Illinois, maintain the

quality of waters with quality that is better than water quality standards, and pre-

vent unnecessary deterioration of waters of the State . 35 Ill . Adm . Code 302 .105 .

The Board's rules further state that :

waters of the State whose existing quality is better than any of the established

standards of this Part must be maintained in their present high quality, unless the

lowering of water quality is necessary to accommodate important economic or social

development . 5 T1.1 .

Adm .

Code 102 .105(c)(1)

.

Thus, the antidegradation assessment performed by the Agency assures that the exist-

ing uses of the receiving stream are protected and water quality that is better than

the existing standards is not lowered unless necessary for economic or social devel-

opment .

As discussed above, in this proceeding the burden is on the Residents and Slocum to

establish that the issuance of the NPDES permit will result in a violation of the

Act or Board regulations . Thus, to prevail on this issue, Residents and Slocum must

demonstrate that the Agency's antidegradation assessment was insufficient and as a

result the permitted discharge will not protect the existing uses of the receiving

stream

. The Board finds that Residents and Slocum have not demonstrated that the

permitted discharge will detrimentally affect the existing uses of the receiving wa-

ters .

Although the record contains reports from engineers who expressed concerns about

the Agency's antidegradation analysis, those concerns were mainly focused on dis-

solved oxygen and phosphorus . See R . at 333 and 2106

. The Agency considered those

reports and addressed those issues in the final permit . See R

. at 2211 . Although the

Residents and Slocum also raised concerns about nitrate plus nitrite, phosphorus,

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sodium, potassium,

boron, strontium, and oil

downstream of the Wauconda outfall, the

levels of these constituents do not exceed water quality standards

. The levels in

the Wauconda discharge are consistent with domestic wastewater throughout the State,

and the permitted discharge will not increase the concentration of these parameters

above water quality standards

. R . at 2222

. The Board's water quality standards are

considered protective of existing uses

. Revisions to Antidegradation Rules, RO1-13

(June 21, 2001)

. Finally, Residents and Slocum have presented no evidence and the

Board finds nothing in the record that establishes that the existence of these con-

stituents will adversely impact existing uses .

+11 As to the argument that Fiddle Creek should be listed as an impaired water, the

Board appreciates the concerns expressed by Residents and Slocum

. However, a permit

appeal proceeding is not the proper forum to address this issue

.

The Board finds that the Agency's antidegradation assessment was sufficient to en-

sure that that existing uses of the receiving waters were protected

. Therefore, the

Agency issuance of the NPDES permit was appropriate

.

Pretreatment Program

The third issue is the lack of a pretreatment program included in the permit

. The

Board will summarize the arguments of the parties and then analyze the Board's find-

ings .

Slocum's Argument

Slocum argues that the NPDES permit issued by the Agency to Wauconda should include

provisions implementing a pretreatment p rogram

. 05-58Br . a t 17 . Slocum points to an

ordinance adopted by Wauconda that a pretreatment program should be established and

to a consent decree requiring Wauconda to implement the pretreatment

p rogram

.

05-SBBr . a t 16 and 18

. Slocum notes that the Illinois Attorney General's Office (AG)

in a letter dated October 30, 2003, indicated

: (1) that Wauconda had not implemented

a pretreatment program, and (2) that the proposed NPDES permit should include provi-

sions that would require Wauconda to demonstrate compliance with the pretreatment

program . R

. at 1033 ; 05-58Br . a t 17

. Slocum concedes that the Agency's record demon-

strates that the Unites States Environmental Protection Agency (USEPA) has not re-

quired a pretreatment program

. R . at 1766 ; 05-58Br . at 17

.

Slocum asserts that the AG filed a complaint against Wauconda on August 17, 2004,

alleging violations of the Board's

r egulations . 05-58Br . a

t 18 . On December 10,

2004, a consent order was entered which requires Wauconda to implement a pretreat-

ment program . Id .

Slocum argues in the reply that Slocum is seeking to have Wauconda's pretreatment

ordinance enforced . 05-58Reply at 2

. Slocum asserts that the Agency is attempting to

shift the Board's focus from the required ordinance

. Id .

Residents' Arguments

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The Residents express

concern with the possibility of contamination of wells due to

the existence of a Superfund site and the leachate from that site being processed by

the Wauconda plant . 05-59Br . at 12-13

. Residents argue that most members are in

daily, intimate contact with the Fiddle Creek Wetlands and many of the wells in the

area use a very shallow aquifer

. 05-59Br . a t 12 . The Residents maintain that the

discharge from the Wauconda plant is a "clear and present danger to health and

safety of downstream Residents, their families, their wells and the environment ."

05-59Br

. at 13 .

The Residents assert that the NPDES permit application submitted by Wauconda in-

cluded false information and the Agency was aware of the

falsehoods . 05-59Br . at 14 .

Specifically, the Residents maintain that the NPDES permit application did not in-

clude the Superfund site even though Wauconda receives wastewater from the Superfund

site . 05-59Br

. at 17 .

Wauconda's Arguments

*12 Wauconda concedes that the NPDES permit does not include a pretreatment program

for Wauconda's industrial dischargers

; however, the Agency did include a requirement

for an annual industrial user

survey . WBr . a t 14-15

. The annual industrial user sur-

vey will allow the need for a pretreatment program to be reevaluated, according to

W auconda

. WBr . a t 15 . Wauconda further points out that the Residents and Slocum'

concern about groundwater is irrelevant to the issuance of a NPDES permit allowing

discharge to surface water . WReply at 3 .

Wauconda also concedes that the application for the NPDES permit did not recognize

that Wauconda received leachate from a Superfund s ite . WBr . a t 15 . However, Wauconda

argues that the record establishes that the Agency was aware of the fact, because

other documents submitted by Wauconda indicated the acceptance of leachate from a

Superfund site . Id . Thus, Wauconda maintains that the oversight was not intentional

nor was the oversight material . Id .

Agency's Arguments

Before addressing the specific issue of pretreatment, the Agency notes that the

Residents and Slocum believe that Wauconda should monitor for every contaminant

found at the Superfund site . Ag .Br . at 28

. The Residents and Slocum included in

their briefs reports that four volatile compounds were found in the discharge from

the Wauconda plant . Ag .Br . at 28 . The Agency asserts that the Residents did not

provide the results of the analysis to the Agency during the comment period or any

other time before the permit was issued and thus the Board should not consider the

information in making the Board's decision . Id

. In any event, the Agency argues the

data does not establish a violation of the Act or Board regulations as none of the

four volatile compounds detected exceed the acute water quality standards for the

compounds

. Id . And only one compound exceeded the chronic water quality criteria and

the Agency asserts that this is not a violation of the Act or Board regulations

.

Ag.Br . at 28-29 .

The Agency states that the determination to monitor for contaminants was based on

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the analysis of whether or not the effluent

had a reasonable potential to exceed wa-

ter quality standards . Ag .Br . at 29

. The Agency performed additional testing after

these same concerns were raised at public hearings and the Agency determined that

only copper had a reasonable potential to exceed the water quality standard . Id .

Therefore, the Agency points out a copper limit was included in the final permit

.

Id

.

As to the argument that the Agency failed to require a pretreatment program, the

Agency maintains that the Agency does not have delegated authority to operate a pre-

treatment program . Ag .Br . at 31

. Therefore, the Agency asserts that the USEPA oper-

ates the pretreatment program and USEPA has determined that Wauconda in not required

to maintain a pretreatment program at this time

. Id . The Agency has modified the

permit to require submission of an industrial user survey on an annual basis, which

will allow the USEPA to review and reconsider the need for a pretreatment program .

Id .

*13 The Agency argues that the Agency is not required under the Act to report false

answers on the application and the Agency had no reason to believe that Wauconda

lied on the application . Ag .Br . at 30

. The Agency asserts that the Board rules do

not require the applicant or the Agency to correct or amend applications as long as

all pertinent information is before the Agency when the permit decision is made . Id .

As to the issue of groundwater contamination, the Agency argues that the contamina-

tion in unlikely to be a result of Wauconda's discharge

. Ag

.Br

. at 32 . Also, the

Agency asserts, the information from the Residents on well contamination was not

provided to the Agency prior to the issuance of the permit and, in fact, the well

was tested nine days after the permit issued . Id .

Board Analysis

The Residents and Slocum have failed to demonstrate that the lack of a pretreatment

program as a part of this NPDES permit violates the Act or Board regulations . The

record establishes that the USEPA has determined that at this time a pretreatment

program is not required . R . at 1559 ; 2221 . The Agency, to ensure that the USEPA re-

mains appraised of industrial users, has required annual submission of an industrial

user survey . Thus, if a need should develop for a pretreatment program, the USEPA

will have the information needed to establish the program .

As to the ordinance adopted by Wauconda requiring a pretreatment program, the Board

finds that a condition in a permit is not necessary to ensure that the Act or Board

regulations will not be violated . Wauconda may adopt ordinance that Wauconda be-

lieves appropriate ; however, that does not mean that the ordinance should be in-

cluded in a permit . Furthermore, the fact that the AG filed an enforcement after the

issuance of the permit that resulted in a consent order requiring pretreatment is

not relevant in this proceeding . The August 17, 2004 complaint was filed after the

close of this record and therefore is not appropriate information for Board consid-

eration . See Prairie Rivers Network PCB 01-112 ; Alton Packagi .na . 162 Ill . Anp .

3d

N 2 27

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Finally, the Board shares the concerns

expressed about potential groundwater con-

tamination

. However, the record is devoid of any indication that the discharge by

Wauconda affects the groundwater in the area

. Rather, the record establishes that

the Agency carefully examined this concern, but found that the wells would not be

affected by the discharge . See R . at 2189 ; 2216-17 ; 2236-37

Prior Permit Violations

The fourth issue raised is the Agency's evaluation of prior permit violations in

determining to issue a permit . The Board will summarize the arguments of the parties

and then analyze the Board's findings .

Slocum's Argument

Slocum asserts that the Agency has knowledge of "many violations of the current NP-

DES permit" by Wauconda ; however, the Agency did not consider those past violations

when issuing the modified NPDES permit . 05-58Br . at 22 . Slocum argues that if there

are violations when the permit allowed for less wasteload to enter the watershed,

the violations should be considered with the increased wasteload

. Id . Slocum main-

tains that in response to prior violations a consent order was entered which prohib-

ited further violations of the Act and Board regulations . 05-58Br . a t 23

. However,

Slocum maintains that a review of public records available from USEPA establishes

that Wauconda's effluent continues to violate the Act and Board

regulations .

05-58Br . a t 23-24 .

*14 Slocum argues that the Board has the authority to "devise additional methods

and conditions to ensure" Wauconda's compliance . 05-58Br . a t 26

. Slocum asks the

Board to deny the issuance of the permit until additional data is compiled . Id .

Residents' Arguments

The Residents argue that the Agency issued the NPDES permit to Wauconda even though

there had been a prior enforcement

a ction . 05-59Br . a t 21-22 . Furthermore, the Res-

idents assert that the Agency issued the permit at issue seven days after another

enforcement action was filed against Wauconda

. Id . The Residents maintain that the

Agency records show that Wauconda "constantly violates" the Wauconda ordinance (FN2]

for boron and total dissolved solids . R . at 1766 ; 05-59Br . at 23 .

Wauconda's Arguments

Wauconda argues that an Agency permit decision cannot be used as a substitute for

an enforcement action under the Act . WReply at 3, citing IEPA v . PCR .

252 T11

.Pup-

3d828,

830 624 N .E .2d 402, 404 (1993) . Wauconda notes that the Residents and Slocum

rely on Section 39(a) of the Act (415 ILCS 5/39(a)(2002))

to support the argument

that the Agency should have considered prior and current enforcement actions brought

against Wauconda . Wauconda asserts that the language of Section 39(a) of the Act

(415 ILCS 5/39(a)(2002)) actually provides that the Agency may consider prior adju-

dications of noncompliance and impose reasonable conditions related to the past his-

tory . WReply at 4 . Wauconda argues that the past violations were already resolved by

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improvements to the

Wauconda plant and Agency consideration of the complaint that

had not yet been filed would have been inappropriate

. WReply at 4-5 .

Agency's Argument

The Agency argues that Section 39 (a) of the Act

(415 TICS S/39 (a) (2002LL does not

impose a mandatory duty on the Agency to consider prior adjudicated violations .

Ag.Br . at 33

. The Agency asserts that the Act requires the Agency to consider prior

violations so that, if necessary, conditions can be imposed on a permit

. Id . Fur-

thermore, the Agency claims that Wauconda's prior adjudication of noncompliance was

considered . Id . The Agency determined that the planned expansion of the plant would

address the issues that led to the violations of the Act covered by the December 13,

2000 consent order

. Id .

Board Analysis

First as discussed above, the complaint filed on August 17, 2004, is not relevant

in this proceeding

. As to the Agency's review of the prior adjudicated violations,

the Board agrees with Wauconda and the Agency that the Act does not require the

Agency to consider the violations . However, the Agency did consider the prior viola-

tions and determined that the proposed modifications to the Wauconda plant would ad-

dress those violations . Thus, a condition is not necessary to address the prior ad-

judicated violations . Therefore, the Board finds that the Agency did properly con-

sider the prior adjudicated violations against Wauconda .

1 5 The Board notes that the permit process cannot be used in lieu of an enforce-

ment action for past violations of the Act or Board regulations . See

Panhandle East-

ern Pipe Line Co

v

IEPA and

PCB 314

111,

ADD 3d 296, 303 ; 734 N E 2d 18, 24 (4th

Dist

.

2000), citing IEPA v . PCB . 252 111, Ann . 3d 828 . 830

624 N.E .2d

402,

. The

Residents and Slocum have provided no evidence that the permit as issued will cause

a violation of the Act or Board regulations . Therefore, the Residents and Slocum

have not met their burden of proof .

Due Process

A fifth issue raised by the Residents concerns whether the Agency denied due pro-

cess to the Residents . The Board will summarize the arguments of the parties and

then analyze the Board's findings .

Residents' Argument

The Residents argue that the Agency has "institutionalized practices and proced-

ures" that result in the "systematic denial" of due process . 05-59Br . at 5, citing

People ex. rel Robert J . Kl.aeren TI et al . v . Vi.11ane

of Lisle et a1„ 202

I1.1

.

2d

164 ; 781 N,E .2d 223 . (2002) . The Residents assert that the issuance of the permit

will result in a wasteload that will contribute to the reduction of the Fiddle Creek

Wetlands . 05-59Br . at 6 . This will result in the loss of riparian rights, according

to the Residents . Id

. The Residents also assert that the Agency failed to comply

with public participation requirements . 05-59Br . a t 28

.

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Wauconda' Arguments

Wauconda argues that the Residents rely on a local zoning case (Klaeren II) in

challenging the procedural sufficiency of the Agency p roceeding . WBr

. a t 6 . Wauconda

asserts that reliance is misplaced . Id . Wauconda asserts that the procedural suffi-

ciency of the NPDES permit application process is well established . Id . Wauconda

cites to several cases that Wauconda believes establish that the Agency's procedures

are sufficient . WBr . at 6-7 .

Agency's Arguments

The Agency agrees with Wauconda that reliance on Klaeren II is misplaced . Ag

.Br . at

16-17, 18

. The Agency notes that the issue before the Illinois Supreme Court in

Klaeren II was whether a landowner could cross-examine witnesses at a public hearing

on rezoning . Ag.Br . at 17 . The Agency asserts that the hearing in Klaeren II was

held under the Illinois Municipal Code (65

TJ.CS

5/1-1-1

et sea . (2002)) . Ag .Br . at

17

. The Agency argues that due process is a flexible concept and requires only such

protections as fundamental principles of justice and a situation demand . Ag

.Br . at

17, citing Abrahamson v . Illinois Department of Professional Regulation 153

Ill . 2d

76 . 92 : 606 N .E .2d 1111 (1992) .

The Agency contends that the permit process before

the Agency has none of the characteristics of an adversarial process and the Agency

fully complied with the requirements of the Act . Ag .Br . at 19-20 .

Board Analysis

The Illinois Supreme Court noted that procedures under Sections 39(a) and 40(a)(1)

of the Act 415 ILCS 5/39(a)

and 40(a)(1) (2002)) do not require the Agency to con-

duct a hearing . The court further noted

:

*16 Consequently, no procedures, such as cross-examination, are available for the

applicant to test the validity of the information the Agency relies upon in denying

its application . As the appellate court noted, the procedure before the Agency has

none of the characteristics of an adversary proceeding

. The safeguards of a due pro-

cess hearing are absent until the hearing before the Board . IEPA v . PCB . 115 111 . 2d

65 . 70 : 503 N .E.2d 343 .

345

(1.986) .

Thus, the Illinois Supreme Court has found that the safeguards of due process, in

the permitting process, are found before the Board .

The Residents relied on Klaeren II to support their argument . However, Klaeren II

is clearly not applicable

. The issue in Klaeren II involved a landowner whose prop-

erty abutted land subject to annexation and rezoning

. Klaeren II 202 Ill . 2d at 167

:

781

N.E.2d at 224 . The court found that property rights of the interested parties

were at issue in the zoning hearing and the parties must be afforded due process .

Klaer n II 202 Ill, 2d a 184 . 781 N .-d a

4 . However, the Illinois Supreme

Court also noted that :

"Due process" is an elusive concept . Its exact boundaries are undefinable, and

its content varies according to specific factual contexts

. Thus, when governmental

agencies adjudicate or make binding determinations which directly affect the legal

rights of individuals, it is imperative that those agencies use the procedures which

have traditionally been associate with the judicial process

. On the other hand, when

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governmental action does not partake of an adjudication, as for example, when a gen-

eral fact-finding investigation is being conducted, it is not necessary that the

full panoply of judicial procedures be used . Klaeren II 202 Ill

. 2d at 1184 ; 781

N,E.2d

at 214 .

The Board has reviewed Klaeren II and the court's reasoning is consistent with IEPA

v

. P B 11

11 2d

7 -

E .2

4

.

The process before the Agency is

fact-finding investigation, while the process before the Board is an adjudication

that directly affects the legal rights of an individual

. Thus, the court's decision

in IEPA v . PCB, 115 111, 2d

65, 70 ; S03 N.E.2d 343, 345,

that the safeguards of a

due process hearing are absent until the hearing before the Board, is consistent

with the court's decision in Klaeren II, that a zoning hearing can affect the rights

of interested parties and due process must be afforded

. Therefore, the Board finds

that the Residents' arguments that the Agency denied the Residents due process are

without merit .

Residents also argue that the issuance of the permit will result in a loss of ri-

parian rights . The Board is not persuaded by this argument

. The Illinois Supreme

Court in Lan fill

v P B 7 Il

2d

7 N E 2

1 7

noted that the

constitutional argument lacked merit "in light of the statutorily established mech-

anism for persons not directly involved in the permit-application process to protect

their interests ." Landfill . Inc . 74

T]1 2d at 559 : 387 N,F,2d at 265

. The Appellate

Court followed that reasoning in Prairie Rivers, finding that Prairie Rivers' con-

stitutional arguments lacked merit in light of 35 Ill

. Adm . Code 309 . Prairie

Rivers . 335 711, Ann .

3d at 405 ; 781 N.F .2d at 383 .

The Board finds that reasoning

also applies in this case

. Residents have been given ample opportunity to particip-

ate in this proceeding and actually chose not to exercise their right to call wit-

nesses and cross-examine the Agency before the Board

. Therefore, the Board finds the

constitutional arguments of Residents are without merit

.

CONCLUSION

*17 The Board finds that the petitioners have failed to establish that the permit

as issued would violate the Act and Board regulations

. Also, the Board finds that

acceptance of a stipulation and settlement is not appropriate in this proceeding

.

The Board further finds that the Agency's antidegradation assessment was sufficient

and the Agency's evaluation of prior adjudicated violations was adequate

. The Board

agrees that a pretreatment program is unnecessary to ensure that the permit will not

violate the Act or Board regulations

. The Board finds the arguments that petitioners

were not afforded due process are without merit

. Therefore, the Board finds that the

Agency appropriately issued the NPDES permit to Wauconda and the Board affirms the

Agency's decision

.

ORDER

The Board affirms the Illinois Environmental Protection Agency's issuance of a Na-

tional Pollutant Discharge Elimination System permit to the Village of Wauconda

.

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IT IS SO ORDERED .

Section 41(a) of the Environmental Protection Act provides that final Board orders

may be appealed directly to the Illinois Appellate Court within 35 days after the

Board serves the order . 415

ILLS 5/31(a) (2002)) ; see also 35 Ill . Adm . Code

101 .300(d)(2), 10, J.02 .7n6

. n linois Supreme Court Rule 115 establishes filing

requirements that apply when

the Illinois Appellate Court, by statute, directly re-

views administrative orders . 172 Ill . 2d R . 335

. The Board's procedural rules

provide that motions for the Board to reconsider or modify its final orders may be

filed with the Board within 35 days after the order is received . 35 111 .

Adm

.

Code

101 .520 ; see also 15 711 . Adm . Code 101

.902, 102 .700, 102 .702 .

G .T

. Girard

FN1

. The Municipal-Environmental petitioners brief will be cited as "05-55Br

." and

the reply will be cited as "05-55Reply"

. The Slocum brief will be cited as

"05-58Br ." and the reply will be cited as "05-58Reply"

. The Residents brief will be

cited as "05-59Br." and the reply will be cited as "05-59Reply"

. The Wauconda brief

will be cited as "WBr

." and the reply will be cited as "WReply" . The Agency brief

will be cited as "Ag .Br ." and the reply will be cited as "Ag .Reply"

.

FN2 . The Village of Wauconda has adopted an ordinance (2000-0-31, adopted Sept

. 19,

2000) requiring a pretreatment program be developed for the Wauconda plant

. R . at

1766 ;

05-59Br . at 23 .

2005 WL 946593 (Ill

.Pol .Control .Bd .)

END OF DOCUMENT

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Thomson/West

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No Claim to Orig . U .S . Govt . Works

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