•
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PROPOSED EXTE SION OF ADJUSTED STANDARD )
APPLICABLE TO ILLINOIS-AMERICAN WATER
)
COMPANY'S ALTON PUBLIC WATER SUPPLY
)
FACILITY DISCHARGE TO THE MISSISSrPPI
RIVER)
NOTICE OF
Fill G
AS 2007-2
(Adjusted Standard)
PLEASE TAKE NOTICE that on September 10,2007, there was electronically
filed with the Office
of the Clerk of the Illinois Pollution Control Board of the Slate of
Illinois an original, executed copy of the AGENCY'S POST-HEARl G BRIEF, a
copy
of which
is herewith served upon you.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
By:
~ =-cl~
Sanjay K. Sofat
Assistant Counsel
Dated: September 10, 2007
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(2 I7) 782-5544
Electronic Filing, Received, Clerk's Office, September 10, 2007
BEFORE THE ILLINOIS POLLUTION CO TROL BOARD
IN THE MATTER OF:
)
)
PROPOSED EXTE SIO OF ADJUSTED STANDARD )
APPLICABLE TO ILLINOIS-AMERlCAN WATER
)
COMPANY'S ALTO PUBLIC WATER SUPPLY
)
FACILITY DISCHARGE TO THE MISSISSIPPI RlVER )
AGENCY'S POST.HEARING BRIEF
AS 2007-2
(Adjusted Standard)
NOW COMES the Respondent, Illinois Environmental Protection Agency
("Illinois EPA" or "Agency") by and through its attorney, Sanjay
K. Sofat, Assistant
Counsel, pursuant
to the Hearing Officer Order dated July 23, 2007, hereby submits this
post-hearing brief in response to lllinois-American Water Company's
(UIIIinois-
American") petition for an adjusted standard for its Alton Public Water Supply facility.
rninois-American seeks an adjusted standard from the fllinois Pollution Control Board's
("Board") regulations at 35 Ill. Adm. Code 306. I24 and 304.106 for its discharge to the
Mississippi River. In support, Illinois-American argues that since it is Funding the GRLT
sedimentation reduction project that has been successful in providing a 2 to 1offset of
solids, the Board should grant an "extension" to its adjusted standard in AS 99_6.
1
The Agency, however, requests the Board to deny lIIinois-American's
relief far
the following specific reasons:
i)
lIIinois-American's requested relief from cmuent
standards by funding a sedimentation reduction project is inconsistent with the Clean
Water Act ("CWA"); ii) 1lIinois-American has not met its burden under Section
28. I
(c)
I
There is no Board procedure for an "extension"
(0
an adjusted standard. Therefore, Illinois-American
must file a new petition that meets the requirements under Section 28.1(c)
of the
Act.
2
of the Illinois Environmental Protection Act (the "Act") and the Board regulations; and
iii)
IIlinois-American's trading project is bad policy for Illinois.
I. Introduction
On March 19, 1999, l1Iinois-American petitioned for an adjusted standard,
docketed
as AS 99-6, for its proposed public water supply treatInent facility located along
the Mississippi River near River Mile 204, in Madison County ("the Alton facility").
Illinois-American requested that the Board adopt an adjusted standard from Section
304.124, Section 304.106, and Section 302.203. Initially, the Agency recommended that
the Board deny IIIinois-American's requested adjusted standard and raised a number of
flaws with l1Iinois-American's petition. Most notably, the Agency asserted that unlike
other facilities which were built in the "pre-regulatory era" Illinois-American is
"[c]onstructing its new facility with full knowledge of State and federal effluent and
water quality requirements."
Agency's Recommendation,
AS 99-6. p. 9-10, September
16, 1999. Essentially, the Agency sought to highlight the fact that it was technically
feasible and economically reasonable for Illinois-American to meet the effluent standards
of general applicability given it was building a new facility.
Later. the Agency abandoned its position and supported IIIinois-American's
proposed funding
of a sedimentation reduction project, in lieu of technology-based
standards.
2
The Board granted Illinois-American an adjusted standard from Sections
302.203, 304.106, and 304.124.
Board Order,
AS 99-6, October 19,2000. The Board
2 In
In the matterol Site-specific Rulemakingfor the Sanitary District ofDecatur. Illinois,
R85-15, slip
op. at
7, January 23, 1986, the Board noted a problem with site-specific rulemakings being that, "( s]ome of
which will inevitably become obsolete and others which will lose their justification with time. The Agency
believes that this is the case
here-that funding ofa sedimentation reduction project in lieu of technology-
based controls has lost its justification.
The Agency believes that its recommendation in AS 99-6 was
inconsistent with the
CWA and the NPDES program.
3
ordered Illinois-American to provide a minimum of $4, 150,000 in year 2000 dollars to
GRLT for a sediment loading reduction project over the next ten years.
/d.
at 2.
Additionally, the Board exercised authority under Section 27(a) of the Act by
implementing a seven-year sunset provision into IIlinois-American's adjusted standard.
Specifically, the Board'sorder provided for a sunset date ofOctober 16,2007, at which
time
relief would
end unless renewed by the Board.)
Since the Board granted l1linois-American relief under AS 99-6, l1linois-
American's Alton facility has been constructed without the equipment necessary to treat
TSS or total iron. The Alton facility began operations on December 31, 2000. which
consists ofa raw water intake and pumping station, clarification and filtration units,
filtered water storage, and chemical feed facilities.
On October 31, 2006, l1linois-American petitioned the Board for extended relief
for its Alton facility.
In
its petition, lIIinois-American proposed to continue funding
GRLT's sedimentation reduction project in exchange for
relief from
35111. Adm. Code
304.106,304.124, and 302.203. Then on April 3, 2007, l1linois-American amended its
petition, requesting relief from Section 304.124 for TSS and total iron and 304.106 for
offensive discharges. In its amended petition, Illinois-American conveniently offers only
two ways for the Board to review its request for relief:
I)
if the
project is effective, the
Board should grant pennanent relief from the effiuent standards or
2)
only "in the case of
insum10untable failure" should the Board deny l1linois-American pCm1anent relief. Yet,
the Agency asserts that the issue before the Board is not whether the sedimentation
3 Illinois-American
emphasizes that the Agency
itselfstated
that only "in the case
of an
insurmountable
failure
of the
program" would the Agency require treatment
of the
water plant's effluent. First, this
language is not binding on this proceeding, because the Board never adopted the Agency's language into
the Adjusted Standard. Funher, it is the Board, not the Agency that makes decision regarding whether
llJinois-American will continue to receive relief under an adjusted standard.
4
reduction project is successful, but rather whether Illinois-American has met their
statutory burden under Section 28.1 of the Act and Part 104 of the Board's rules.
Typically, when the Board grants adjusted standards, the
relief is
pemlanent.
However, the Board has implemented sunset provisions to provide a facility with
temporary relief.
In
In the maller of Site-specific Rulemakingfor the Sanitary District of
Decatur. JIlinois,
R85-1 5, slip op. at 7, January 23, 1986, the Board justified the necessity
of sunset provisions as to "[rlequire the holder of an exception to bear the burden of
justification for continuing the exception." Additionally, the Board noted, as "the relief
could only emanate [Tom the Board initially, it is appropriate that the Board detennine the
continuing validity of that relief in the future," and a sunset provision is a product of such
a detennination.
Id.
Here, the Board specifically ordered Illinois-American to reapply for an adjusted
standard for the GRLT project past its seventh year.
Boord Order,
PCB 99-6, slip op. at
5, October 19,2000. Since, there is not a separate Board procedure for applying for an
extension to adjusted standards,lIIinois-American must submit a new petition
establishing that it has met all the requirements under Section 28.I(c) of the Act (415
ILCS 5/28. 1(c) (2006)). Thus, the Board must conduct a
de novo
review of the lIlinois-
American's petition, based on the record in this proceeding.
D.
Background on CWA
Congress enacted the CWA in 1972 "to restore and maintain the chemical, physical,
and biological integrity of the Nation'swaters." 33 USC § 125 I(a). Further, Congress
declared a national goal of eliminating the discharge of pollutants into the navigable
waters by 1985. 33 USC § 1251(a)(I).
In
passing the CWA of 1972, Congress made an
5
intentional shift from the focus of general water quality standards, to specific effiuent
limitations.
See Peabody Coal Co. v. Illinois Pollllliofl Control,
36 1II.App.3d 5, 344
N.E.2d 279, 286 (5th Dis!. 1976). Yet, Congress retained water quality standards as a
supplementary
basis for effiuent limitations.
See EPA v. California ex reI,
426 US 200,
205,96 S.C!. 2022 (1976)
(emphasis added).
By changing the focus to effiuent limitations, the CWA places restrictions on the
amount
of pollutants
that a facility can discharge through technology-based control.
See
Delaware Co. Safe Drinking Water Coalitioll. Illc. v. McGillty.
2007 WL 2213516, slip
op.
at4, (E.D. Pa. July 31, 2007). Unlike water quality standards, which are based on
physical attributes of a particular water segment, technology-based limitations are based
on an evaluation
of the
capability
of water
pollution control technologies.
Id.
The primary mechanism for achieving the national goal is through a system of
effluent limitations guidelines and the National Pollutant Discharge Elimination System
("NPDES'l pennits that set technology-based diseharge limits for point sources.
See
TexasOil&GasAss.lIv. U.S.E.P.A.,
161 F.3d 923, 927 (5th Cir.1998). Section301(a)
of the CWA prohibits the discharge of any pollutant except those that are limited by an
NPDES penni!.
33 U.S.C. § 1311(a). The statute gives the United States Environmental
Protection Agency
("EPNj
the authority to issue
pennits
to point
sources~
and those
permits must establish technology-based effiuent limitations that incorporate increasingly
stringent levels of pollution control technology over time. 33 U.S.C. §§ 1311 (b)( I)(A),
(B),
(b)(2)
An additional purpose for the permit program is to allow imposition of effiuent
limitations prior to their fonnal adoption by the federal EPA.
See
33 U.S.c. § 1342(a)( I).
6
Peabody Coal Co. v. !IIinais Pollulioll Conc,o/ Bd.,
36 II1.App.3d 5, 344 N.E.2d 279, 286
(5lh Dis!. 1976). The discharger, however, may avoid lhe incorporation
of applicable
cffiuent limitations into an NPDES pennit where the EPA grants the discharger a
variance based on the discharger's demonstration that it is "fundamentally different"
from other dischargers in the category or subcategory. 33 USC 1311(n); 40 CFR
122.21 (m)( I), 125.30-125.32.
Texas Oil
&
Cas Ass
'/l
v. U.S. E.P.A.,
161 F.3d 923, 928,
(5th Cir.1998).
The enacbllent
of CWA 1972 amendments have thus made the technology-based
control emuent limitations the central focus of the overall mechanism of water pollution
control under the CWA. The technology-based emuent limitations still remain the
primary mechanism for controlling water pollution, at
both
the Federal and State levels.
In.
Board's Autbority to Review Adjusted Standard Petitions Under the Act
In adjusted standard proceedings, the Board is charged to "detennine, define, and
implement environmental control standards applicable in the State of Illinois" (415 ILCS
5/5(b) (2006», and to "grant... adjusled standard for persons who can juslify such an
adjustment." 415 ILCS 5/28.I(a) (2006).
In both a general rulemaking and a site-specific rulemaking, the Board is required to
take the following factors into consideration: the existing physical conditions; the
character of the area involved, including the character of surrounding land uses; zoning
classifications; the nature
of the
receiving body
of water;
and the technical feasibility and
economic reasonableness of measuring or reducing the particular type of pollution. 415
ILCS 5/27(a)(2006). The general procedures that govern an adjusted standard proceeding
are found at Section
28.1 of lhe Act (4 t 5 ILCS 5/28.1 (2006)), and the Board'sprocedural
7
rules at 35 III. Adm. Code Part 106. Section 28.1 also requires that the adjusted standard
procedure be consistent with Section 27(a).
Illinois-American seeks an adjusted standard from the rules of general applicability.
These regulations do not specify a level ofjustification that is required for a petition to
qualify for an adjusted standard.
In
determining whether an adjusted standard should be
granted from a regulation of general applicability where no level ofjustification is
specified, the Board must consider, and the petitioner has the burden to prove, the factors
at Section
28.I(c) of the Act (415 ILCS 5/28.I(c) (2006)). Those factors are:
1.
factors relating to that petitioner are substantially and significantly
different from the factors relied upon by the Board in adopting the
general regulation applicable to that petitioner;
2.
the existence of those factors justifies an adjusted standard;
3.
the requested standard will not result in environmental or health
effects substantially and significantly more adverse than the
effects considered by the Board in adopting the rule
of general
applicability; and
4.
the adjusted standard is consistent with
any applicable federal law.
Further, Section 28.1
of the Act provides that the Board shall adopt procedures applicable
to adjusted standard detenninations. The applicable standards are contained within
Subpart
0 of Part 104 of the Board's procedural rules.
IV.
Arguments
The Agency cannot support lIlinois-American'spetition for an adjusted standard
for the reasons stated below.
A. Illinois-American Cannot Satisfy Section 27 of the Act.
Illinois-American relies on the Site-Specific Analysis of Impacts of Potential
Alternatives for Handling Public Water Supply Residuals at Proposed Alton,
l11inois
8
Facility (the "Site Specific Impact Study") prepared by ENSR, an environmental
consulting and engineering firm, dated March 1999.
4
The purpose of this study was to
provide the Board with sufficient information regarding the environmental impact,
technical feasibility, and economic reasonableness
of the potential alternatives to treat
discharges from the Alton facility; to satisfy state and federal requirements under various
substantive and procedural statutes; and to address the
Agency's concerns about the new
facility.
Illinois-American Amended Petition,
AS 07-2, April 2, 2007 at 6. The Agency
takes issue with Ulinois-American'sjustificalion concerning the nature of the receiving
body of water, and the technical feasibility and economic reasonableness of measuring or
reducing the particular type of pollutant.
5
First. Illinois-American argues that it deserves relief from the effiuent standards based
on the nature of the receiving body of water. Specifically. Illinois-American asserts that
this existing background concentration warrants an adjusted standard from total
suspended solids (''TSS'').lIIinois-American's understanding of the background
concentration rule (Section 304.103) is inconsistent with the Board's interpretation of this
rule in
In the maller of Petition for Site-Specific Exception to EJJ1uent Standards for the
Illinois-American Water Company, East
St.
LOllis
Treatment Plant.
R85-11) slip op. at
16, September 25, 1986.
In
that proceeding, the Board found that Section 304.103 does
not apply in cases where the "[c]oncentration of suspended solids in ...[the] effiuent is
not a result of either influent contamination, evaporation. or the addition of trace amounts
• The Agency would like to note that Illinois-American still relies upon the Sile Specific Impact Study that
was complied in 1999 to justify the reasons for its adjusted standard. The Agency believes this is unsound.
The study was compiled in 1999 to study the
proposed
Alton facility. While Illinois-American does make
certain modifications to "update" the study, the Agency believes that in no way does a study conducted in
1999 justify the Board gmnting an adjusted standard eight years later.
S The Agency'sdiscussions regarding "technical feasibility and economic reasonableness will
be
discussed
under Subheading Illinois-American cannot meet its burden under Section 104.406(e).
9
of materials, and that Rule 40 I(b) [now Section 304.103] did not intend to exempt
effiuents
in which contaminants were deliberately concentrated."
Jd.
IIIinois-American's
Alton facility deliberately concentrates the effiuent prior
to discharge, so Section 306.103
does
not apply.
If
the Board grants Illinois-American's request solely based on this
factor, than the remaining, approximately 47 facilities
6
along the Mississippi River could
also seek relief
from the TSS and total iron effiuent standards.
Also, when Congress enacted technology.based controls, "[t]he
new approach
reOected developing views on practicality and rights. Congress concluded that water
pollution seriously hanned the environment, and that although the costs
of control would
be heavy, the nation would benefit
from controlling that pollution."
Weyerhaeuser Co. v.
Costle,
590 F.2d
10
11, 1042
(D.c.,
1978). Further, the "[r]ight of the public to a clean
environment would be pre-eminent, unless pollution treatment was impractical or
unachievable."
/d.
at 1043. The Board should deny Illinois-American's request because
it directly conflicts with Congress'sdeclaration that, "'[t]heuse
of any river, lake, stream,
or ocean as a waste treatment system
is unacceptable' regardless of the measurable
impact
of the waste on the body of water in question. Legislative History at 1425 (Senate
Report)."
Id.
B. Illinois-American Has Not Met Its Burden Under Section 28.I(c) of tbe Act.
All factors under Section 28.1 (c) must be met in order for the Board to grant Ulinois-
American its requested adjusted standard. The first factor that Illinois-American must
prove
is the "[fJactors relating to that petitioner are substantially and significantly
different
from the factors relied upon by the Board in adopting the general regulation
6The Agency conducted a search on the EPA '5 website http://www.epa.gov/envirolhtmllpcsladhoc.html.to
find the number of point sources with TSS limitations that are directly discharging into the Mississippi
River.
to
applicable to that petitioner." 415 ILCS 5/28.1 (c) (2006). Illinois-American asserts that
their funding
of the
GRLT sedimentation reduction project is a "substantially and
significantly different factor."
JIIillois-Americoll
Amended
Petitioll,
AS 07-2, April 2,
2007. However, nIinois American ahs misconstrued the interpretation
of "substantially
and significantly factors."
To interpret the meaning
of "significantly
and substantially different" factors, the
Board should consider the federal interpretation
or "fundamentally
different factors," and
the Board's interpretation in previous orders.
At the
Federal level.
EPA defines "fundamentally different factors" as, "factors ofa
Technical and Engineering Nature."
Weyerhaeuser Co. v. Castle,
590 F.2d 1011, 1038
(D.c.c.
1978) (citing Memorandum to Regional Administrators of EPA, 39 Fed.Rg.
300073 (1974)). A variance at the federal level is granted only "the overall situation
facing an individual operator differs from the overall situation
of the
industry."
!d.
at
1040.
In
prior cases, the Board has previously interpreted the "substantially and
significantly difTerent factors" in accordance with the federal interpretations
of the
"fundamentally difTerent factors,"
In In the Maller of The Joint Petition
ofthe
City of
Metropolis and the JIIinois Envirmlmental Protection Agency For an Adjusted Standard
from 35111. Adm. Code Part 304 for 5-day Biological Oxygen Demand (BOD-5),
Suspended Solids alld Ammonia Nitrogen,
AS 95-3, slip op. at 9-10, June 6, 1996, the
City requested an adjusted standard and evidenced that its discharge was "substantially
and significantly" difTerent because "[i]t is currently meet[ing] the general standards
applicable to dischargers to the Ohio River."
Id.
at 9. The Board concluded that "given
It
the City'srecent expenditures to achieve compliance with the Ohio River standards,
requiring
it to now achieve the standards generally applicable to discharges to the Kidd
Creek would not be reasonable
...."
/d.
The Board further noted that,
The purpose
of the adjusted standard is to allow the City
wastewater treatment plant, constructed
in 1970 and upgraded in
1989, to continue to operate and discharge according to the
standards for which it was designed, all in the accordance with
agreements reached between USEPA, the Agency, and the City.
The quality of the effluent from the plant more than meets the
standards necessary, for the condition at the site, and for which the
plant was designed and constructed.
/d.
Here, Il1inois-American cannot argue that its Alton facility was constructed three
decades ago, and that
it has no ability to upgrade the facility to include necessary
technology controls. Nor can Illinois American argue that special conditions
at site
prohibit
it from meeting the applicable effiuent standards.
In
In the matter of' Petition ofNoveon. Inc. For an Adjusted Standardfrom
35
Ill.
Adm. Code 304. J
22, AS 02-5, slip op. at 2, November 4, 2004, the Board discussed the
"substantially and significantly" different factors consistent with the Agency asserted
interpretation. Specifically,
The Board finds that the quality and composition
of the discharge
that Noveon produces in its manufacturing process is substantially
and significantly different than wastewaters ofother industries and
POTWs. [Further,] ... although Noveon'swastewater treatment
plant is designed, constructed, and operated similarly to a POTW
that achieves nitrification. the Henry plant is unable to achieve
nitrification because
of the unique characteristics of Noveon's
wastewater.
Id.
at 2.
Again, lIIinois American cannot assert such a "unique characteristic
of its wastewater."
Accordingly, there
is no reason for this Board to grant Illinois-American an adjusted
standard when
it has not convincingly evidenced that its facility's discharge is unique.
t2
Furthermore, although lIIinois.American asserts that it does not have to justify
that it is different from any other point sources that are discharging
emuent into an
lIIinois waterway, past Board adjusted standards conclude otherwise.
In
In the Matter ol
Petition for I/Iinois Power Company (Vermillion Power Station) for Adjusted Standard
from 351/1. Adm. Code 302.208(e),
AS 92-7, October 7,1993, the Board noted that the
facility's argument was not sufficient to grant an adjusted standard under its facility's
conditions. Specifically,
No evidence
or argument was presented regarding how [P's
situation was any different than any other Illinois utility
or
discharger who is discharging effiuent into an U1inois waterway....
W
presents no evidence concerning the ability or inability ofother
electric utilities in the state to comply with the standards and why
the
IP plant is different.
It
presents no evidence as to why the
technology at its Vermilion plant is different than any other plants
which presumably comply.
[d.
at 18.
Based on the discussions above, Ulinois.American cannot assert that funding a
sedimentation reduction project constitutes a "substantially and significantly" different
factor. Therefore, the Agency requests that the Board deny IIIinois-American'srequested
relief.
c. Illinois-American Has ot Met the Requirements Under Subpart 0
of Part 104 of the Board'sRules.
Illinois-American has not satisfied the requirements under Section 104.406(b) of the
Board'sprocedural rules. This Section provides that
!.he Petitioner must provide a
statement that indicates "[w]hether the regulation
of general applicability was
promulgated to implement,
in whole or in part, the requirements of the CWA (33 USC
1251
er seq.)
... Orlhe State NPDES programs." 35 lll. Adm. Code 104.406(b). llIinois-
American has not satisfied this requirement.
In the past, the Board has rejected adjusted
13
standard petitions for not adequately satisfying this requirement.
See
/11
the Maller of
Petition oJCity ojElginJar all Adjusted StalldardJrom
35 JII.
Adm. Code 304.125 alld 35
III. Aclm. Code 302.204,
AS 01-0 I, slip op. at 2, August 20, 2000 (Holding that the
adjusted standard petition had not adequately addressed certain proof, by failing to
address the regulation
of general applicability was promulgated to implement the
requirements of the state NPDES program.).
In
ils Amended Petition, Illinois-American asserts thai Part 304 of the Board's
regulations was not promulgated in whole or in part to implement the requirements of the
CW
A. fIIinois-American assertion is without basis as: 1) Part 304 was adopted to
implement the requirements of the State's NPDES program, and 2) Part 304 was clearly
adopted at least in part to implement the requirements of the CWA.
Part 304 was Adopted to Implement the Requirement ofthe NPDES Program
The CWA allows a State to administer its own NPDES program for discharges
into the waters of the State, provided that the State'sprogram meets federal standards. 33
U.S.c. § 1342 (b). Further, the CWA requires that approved states' NPDES permitting
programs be consistent with minimum federal requirements. 33 U.S.C. § 1314 (i).
Under the CW
A, a state may submit a description of a proposed program along
with a statement from the state attorney general that state law provides adequate authority
to
carry
out the program. To enable the State of Illinois to administer its NPDES
program, Illinois enacted the
LIIinois Environmental Protection Act and adopted the
Board'sNPDES permit related regulations', including 35 Ill. Adm. Code Part 304. On
J The Board regulations R73-11 and R73-12 were adopted by the Board to enable the Stale of Illinois to
administer, upon approval
by the United States Environmental Protection Agency, the National Pollutant
Discharge Elimination System (NPDES). The Board adopted the regulations in question in an attempllO
satisfy the requirements
ofseclion 402(b) of the Federal Water PoliUlion Conrrol Act Amendments of
14
October 23, 1977, lllinois received approval for its National Pollutant Discharge
Elimination System ("NPDES") program, as the State'sproposal met the minimum
federal requirements. Like most states, Illinois administers the NPDES program subject
to EPA oversight
of the State's pennit issuing procedures.
The Illinois Environmental Protection Act prohibits the Agency from issuing
pennits which do not contain tenns and conditions consistent with the federal and State
law. Section 39(b)
of the Act specifically "allows the Agency to issue NPDES pennits as
defined in Federal Water Pollution Control Act [FWCPA, now known as Clean Water
Act] Amendments
of 1972, and further allows for conditions to be imposed to accomplish
the purposes
of this Act, including effluent limitations."
City ofEast Moline v. Illinois
Pollution Control Bd.,
188 III.App.3d 349, 544 N.E. 2d 82, 84 (3rd Dis!., 1989).
Section 309.141(f) gives the Agency the authority consistent with Section 39(b) to
set standards and conditions necessary to carry out the provisions
of the Act "prior to
promulgation
by the Administrator of the US EPA of applicable effluent standards, and
limitations pursuant to sections 301, 302, 306, and 307
of the FWPCA."
U.S. Steel Corp.
v. JIIinois Pollution Control Bd.,
52 III.App.3d I, 376 N.E.2d 327, 335, 9111.Dec. 893 (2d
Dist. 1977). Without such interpretation, "the Agency would not be able to set conditions
and standards which are necessary to carry out the provisions
of the FWPCA prior to
their promulgation by the Administrator. Such a result would not be
in keeping with the
Agency's pennit granting power and purpose
of the Act."
u.s. Steel Corp. v. Illinois
1972,33 U.S.c. s 1342 (FWPCA), and thereby enable the State to assume permit granting authority for all
dischargers of pollutants from point sources into navigable waters within the Siale.
Peabody Coal Co. v.
Illinois Pollution Control Rd.,
361Jl.App.3d 5. 344 N.E.2d 279. 282 (Sib Dist. 1976).
15
Pollulioll COlllrol Bd.,
52111.AppJd 1,376 N.E.2d 327, 335, 9 lIl.Oec. 893 (2d Dis!.
1977).
Part 304 was adopted to ensure Illinois' pennitting program is consistent with the
minimum federal requirements as required by 33 U.S.C. §1314(i).
Also,
Part 304 was
adopted to allow the Agency to set conditions that are necessary to carry out the
provisions
of the
CWA,
prior to their promulgation
by
the Administrator.
Part 304 was Adopted to Implement the Requirements of the CWA
Under the CWA, it is both the State and EPA's obligations to adopt effiuent
standards. The CWA defines "effiuent standards" as,
Any restriction established by a State or the Administrator on
quantities, rates, and concentrations of chemical, physical,
biological, and other constituents which are discharged from point
sources into navigable waters, the waters
of the
contiguous lone,
or the ocean, including schedules of compliance." 33 USC §
1362(11).
These effiuent standards must be included
in all NPOES permits. 33 U.S.c. §
1342(a)(I). The federal regulations provide that where the federal standards and
limitations have not been adopted, state agencies may promulgate these standards. 40
C.F.R. §§ I24.42(a), (b).
In
the absence of EPA promulgated standards, effiuent
standards are to be established under a case-by-case basis, under Section 402(a)(I)
of the
CWA. Pennits containing case.by-case effiuent limitations are to be based on the pennit
writer's Best Professional Judgment (,'BPJ").
Section 309.141
(I)
of the Board regulations grants the Agency authority to,
"impose such conditions as the Agency detemlines are necessary to carry oul the
provisions of the FWPCA." 35 III. Adm. Code 309.141(1). This directive from the Board
allows the Agency to establish effiuent standards on a case-by-case basis, if no Federal
16
standards have been adopted.
Peabody Coal Co. v. fllinois Pollwion Control Bd., 36
I1I.App.3d 5, 344 N.E. 2d 279, 290 (5th Dis!. 1976).
Instead
of requiring the Agency to establish effluent limitations on a case-by-case
basis, the Board adopted Pan 304, which
is applicable to all point sources in lllinois.
Unlike the Federal effluent standards,
the Part 304 standards do not distinguish between
categories and subcategories
of industries. The Board chose to adopt Part 304 standards,
instead
ofBPl approach, to avoid an overwhelming task of obtaining the necessary case-
by-case infonnation to detennine what limits are readily achievable in a given case.
See
lit The Matter
Of" Effluent Criteria, R70-8: In The Matter Of" Water Quality Standards,
R71-14:
In The Matter Of Water Quality Standards Revisions For Interstate Waters
(SWB-14),
R71-20, slip op. at I, January 6,1972.
Therefore,
in cases where only state effluent standards exist, such standards stand
in place of the federal ernuent standards and must be incorporated in the issued NPDES
pennits
in order for such pennits to be considered consistent with the CWA and the
federal NPDES regulations.
40 C.F.R. §§ I24.42(a), (b). NPDES penniLS granted by a
state agency would only
be considered consistent with the CWA and NPDES regulations
if it contains enforceable effluent limitations.
Illinois-American Cannot Meet its Burden Under Section 104.406(e)
Further, under Section IO4.406(e) of the Board rules provides that the petition must
contain a description
of the effort that would be necessary if the petitioner were to
comply with
the regulations of general applicability. All compliance alternatives, with
the corresponding costs
for each alternative, must be discussed.
17
Again, Illinois-American relies on the Site Specific study conducted in 1999, before
the current Alton facility was even constructed, to demonstrate the effort that would be
necessary to comply with the regulations. Illinois-American evaluates five (5) different
alternatives. Most notably, Illinois-American concedes that
"a combination of non-
mechanical anp mechanical dewatering techniques was a viable means
of treating
residuals, [however) this option is nevertheless a less preferable option than direct
discharge to the Mississippi coupled with completion
of a sedimentation reduction
program."
Illinois-American Amended Pelition,
AS 07-2, April 2, 2007 at 29. Again, the
standard is not whether an alternative is "less preferable," rather the standard was
promulgated to grant relief for facilities where
it was not technically feasible or
economically reasonable to treat effiuent.
lllinois-American asserts that treating TSS and total iron is economically
unreasonable. The Agency believes otherwise. For a financially strong company such as
Illinois-American, it is not financially unreasonable for the company to
be
able to treat to
the degree necessary to come into compliance with technology-based standards.
Consistent with
In Ille mailer 0/ Pelition for Site-Specific Exceplion 10 Effluenr
Siandards/or
Ille Illinois-American Waler Company, Easl SI. Louis Trealment Plant,
R85-II, slip op. at IS, September 25, 1986, the Board, here too should also consider
whether there is any data in the record indicating that Illinois-American does not have the
ability a) to absorb any
or all of the compliance costs, or b) otherwise reduce that impact
on the consumers. The mere fact that there are several point sources on the Mississippi
River that comply with Part 304 standards shows that these controls are in fact both
technically feasible and economically reasonable. Since the Part 304 standards apply to
18
all sources, irrespective of the type of industry, Illinois-American must show there is a
unreasonable
or disproportionate economic hardship in achieving these standards. The
Agency believes that Illinois-American cannot make such a showing.
D. IIIioois.American'sRequested Adjusted Standard is
Inconsistent with Federal Law
lIlinois-American fails to cite to any CWA provision or Federal regulations
governing the NPDES progranl that allows
it to rund a sedimentation reduction program
in lieu of achieving technology-based standards. The CWA places limitations on the
amount
of pollutant that point sources can discharge through technology-based and water
quality based controls. Both ,echnology-based controls and water quality based controls
are implemented through the NPDES pennitting process. Illinois-American's request for
the Board to grant
it relief from TSS and iron emuent limitations on the basis that it is
funding a sedimentation control project contradicts the
CWA's mandate that technology-
based controls must
be
incorporated into all NPDES permits. 33 U.S.C. § 1311 (bX2); 40
C.F.R. 125.3; 122.41; 122.42; 122.44.
The NPDES permits without technology-based
controls is neither consistent with the intent, nor the language
of the CWA
Additionally, Illinois-American's sediment reduction program is inconsistent with
EPA's Trading Policy. First, the Trading Policy specifically states that water quality
trading and other market-based programs must be consistent with the
CWA Further,
EPA has issued a policy stating that pollution trading is not an acceptable method to meet
,echnology-based con'rols.
USEPA,
Waler Trading Policy,
6 (January 13,2003) ("EPA
does not support trading to comply with existing technology-based effiuent limitations.)
19
Electronic Filing, Received, Clerk's Office, September 10, 2007
Funher, in the new
Water Quality Trading Toolkit for Permit Writers,
II
EPA reiterates
that "[t]rading cannot be used to meet technology-based effiuentlimitations." One
of the
stated purposes
of EPA Trading policy is "to encourage stakeholders to find innovative,
supplementary ways to achieve federal, state,
or local water quality goals." Thus, the
policy encourages use
of trading when it will provide additional or supplement
reductions, not as a substitution to the minimum levels
ofcontrols, as Illinois-American
would like to do here.
E.
Granting Illinois-American
3D
Adjusted Standard \Vould Result in Bad Policy
Replacing technology-based controls has many disadvantages for both the
regulato", and the regulated community. Technology-based standards are generally the
first and best answer to pollution control. Wendy
R. Wagner,
The Triumph of
Technology-based Standards,
2000 U.IlI.L.Rev. 83, 88. Technology-based standards are
more enforceable and predictable than most alternative approaches to pollution control.
[d.
at 100. From the standpoint of the regulated entities, technology-based standards
provide unparalleled predictability with respect to compliance obligations.
[d.
Further,
technology-based standards are superior
in their predictability because of the ease by
which regulators can ensure that compliance obligations are met.
[d.
at 101. Most
imponantly, because the reference point is a definable technology for which numerical
standards have been developed, technology-based requirements are almost always clear,
easy to codify, and easy to renect
in pennit requirements.
[d.
This is of further
imponance in an environment where the state agencies have to perfonn their obligations
with limited resources. Since technology- based standards are uniformly and
• USEPA,
Water Quality Trading Toolkit,
p. 6 (August 2(07), available at:
hnp:l/w_.epa.eov/owgw/watmhedJtrading/WQIToolklt.hlml.
20
Electronic Filing, Received, Clerk's Office, September 10, 2007
expeditiously applied across all industries and geographic locations, they can be used to
ensure environmental protection is in place if a pollution market does not work or is slow
to become operational.
Illinois-American portrays this project a win-win situation; however,
it is not.
In
this case, Illinois is losing TSS and iron reduction from the Alton facility. In fact,
Illinois-American wins and the State
of Illinois loses. There are two water pollution
control programs under the
CWA-point source controls and non-point source
management programs. These two programs are independent
of each other.
In
other
words, point source controls cannot be used
to achieve non-point source management
programs, or vice versa. To achieve pollution reductions
at a point source, the Agency
incorporates effiuent limitations into all NPDES pennits. On the other hand,
for non-
point sources, since the
CWA does not have a mechanism or pennitting structure to
achieve pollution reduction from non-point sources, the Agency provides financial
assistance under Section 319
of the CW
A.
Each year, the Agency has set aside
approximately $4.7 million dollars for non-point source projects and has invested
approximately $50 million dollars since 1990 in non-point source control projects across
the State. Most notably. the Agency has never funded a non-point source control project
that has been used
in place of applying technology-based controls.
The goal
of the CWA anticipates the restoration of the Nation'swaters by
applying technology-based controls and non-point source progranls. When a point source
substitutes technology-based controls
for non-point source control projects, the goals of
the CWA are not met, as the State forever loses the ability to achieve reductions
equivalent
to those achievable from the point source. The Agency can always fund non-
21
point source projects. Therefore, effiuent reductions achieved from the point source
controls cannot be substituted for reductions implemented through non-point source
control projects. The
CWA simply does not allow for this scenario because when one
program is used to "achieve" reductions for the other, one program loses it reductions.
Each program must contribute
real pollutant reductions in order to achieve the goals of
theCWA.
Further, should the Board grant the IIIinois-American'srequested relief from
technology-based standards, it would risk "opening the floodgates" for similar
reliefby
point sources along the Illinois side of the Mississippi River, as well as the rest of the
State.
See In The Matter Of: Petition for Site Specific Exception to £fJluent Standards
for tile Illinois American Water Company, East St. LOllis Treatment Plant,
R85-11, slip
op. at 12, September 25, 1986.
GRLT
Project
The Agency considers Piasa Watershed Project a successful nonpoint source
sedimentation control project. Historically, the Agency has funded non-point source
control projects under Section 319
of the CWA, and will continue to do so to "restore,
protect, and enhance the quality
of the environment. ..." However, use of a project like
GRLT as a substitute for technology-based controls is inconsistent with the basic intent
of the CWA. IJlinois-American goes to great lengths to describe the sedimentation
reduction project
9
and also proposed methods for which the Agency could track the
successes
of the project.
IO
• Although Illinois-American would like this Board to believe that the ORLT project will Likely die without
its financial
suppon, in reality, this project can be sustained WIth or withoullllinois-American'sassistance.
GRLT
can be continued with local, Slale, and/or Federal support. Further.
this
argument is not relevant to
wbdber Illinois-American can demonstrated that it bas Justified
and
fulfilled the Kquittment for an
22
Illinois-American over and over again argues that the GRLT project is consistent
with the federal trading policy, and therefore, the Board should grant the requested relief.
However, the simple fact is that Illinois does not have a promulgated trading policy.
Further. the Agency does not intend to ever propose a policy that will allow point sources
to meet the
CWA's requirement ofcomplying with technology-based controls by funding
non-point source control projects. One day the state
of Illinois may decide to have some
fonn
of a trading policy; however. this adjusted standard proceeding is definitely not the
proper forum to discuss the details of that policy. However, the lack ofan JIIinois'
trading policy is not at issue here, nor should it be. For the Board to grant IIlinois-
American'srequested relief, it must show that it has met the statutory burden as well as
Board requirements for an adjusted standard.
F. Tbe Board Sbould ot Consider the Factors in 28.3 of tbe Act.
Illinois-American requests that the Board consider factors at Section 28.3 of the Act
in deciding its adjusted standard petition. However, the legislature specifically directed
the Board to consider Section 28.3 factors in regard to petitions filed before January I,
1992. Public Act 86-1363, efTective September 7, 1990; codified as 415 ILCS 5/28.3
(1998). By limiting the applicability of Section 28.3, it is clear that the legislature did not
intend for relief under this Section beyond 1992. Accordingly, there is no reason for the
Board to consider factors under Section 28.3
of the Act in this decision. Nor should the
adjusted standard under S«:tion 28.1(c) ofthc: Act. Therefore, !he
Board
should ignore lIlinois-American's
attempt to
denect1be focus from
the
proper issue in this proceeding.
10 The Ageocy asserts that discussions related to the GRLT project are
~levant
to
the
question of whether
the
Board should grant the
reques~
adjusted standard. Also, thJs proceedmg
is
neither about what
is
the
appropriate method
ofcalculating soil savings, nor about determining the most appropriate offset ratio for
this
projecl
23
Board rely on the rationale of adjusted standards that it granted pursuant to Section 28.3
of the Act.
G.
Res Judicata/Collateral
Estoppel are Not Applicable to this Proceeding.
Illinois-American asserts that the Agency's recommendation to deny the
extension for an adjusted standard
is barred by
res judicata
and collateral estoppel.
These doctrines are not applicable to this proceeding. The doctrine
of
res judicata
states
that once a cause
of action has been adjudicated by a court ofcompetent jurisdiction, it
cannot
be
retried again between the same parties or their privies in new proceedings. The
doctrine has three essential elements to its application, all
of which must be met: (1) a
final judgment on the merits rendered by a court
of competent jurisdiction, (2) an identity
of cause of action, and (3) an identity of parties, or privity between subsequent panies
and the original parties.
People ex reI. Burris v. Progressive Land Developers, Inc. 151
111.2d 285, 294 (111. 1992).
In
the case ofcollateral estoppel, there are also three
elements: (I) the issue decided in the prior adjudication is identical with the one
presented in the instant matter; (2) there was a final judgment on the merits in the prior
adjudication; (3) the party against whom estoppel is asserted was a party
or a party in
privity with a party to the prior adjudication.
Jersey Sanitation,
PCB 97-2, slip op. at 5;
ESG WailS,
PCB 96-181 and 97-210, slip op. at 2-3, citing
Talarico v. Dunlap,
177 111.2d
185, 191,685 N.E.2d 325, 328 (1997). Further, the "[p]arty claiming [collateral]
estoppel has the burden of proving by clear and convincing evidence that it applies.
Baelkes v. Harlem Consolidated School Dist. No.
122, 363 1Il.App.3d 551, 842 N.E.2d
790, (III.App.2d Dis!. 2006)
(Citing Geddes v. Mill Creek Country Club. file.,
196111.2d
302,324, 25611l.Dec 313, 751 N.E.2d 1150 (2001».
24
One of the essential elements under both doctrines is that there was a final
judgment on the merits rendered by a court of competent jurisdiction. Illinois-American
fails to prove this element has been mel. Here, the Board never intended for AS 99-6 to
be the [mal judgment on the merits of IIIinois-American's funding of the GRLT project
(indefinitely) in lieu
of technology-based standards for its Alton facility. Indeed,
in
AS-
99 there was only
a judgment
regarding IIIinois-American's adjusted standard through
October 16,2007. Because
of the
Board's mandated seven(7)-year sunset provision,
Illinois-American cannot claim that the Board has reached a "final judgment" regarding
this current proceeding. The
Board
required the sunset provision so that it would have
the authority to revisit (JIinois-American's adjusted standard. [n order for J1Jinois-
American to continue to receive relief from the effluent standards, it must obtain another
adjusted standard. Further, the Agency is required under Section 104.4 I6(a) ofthe
Board's regulations to submit a recommendation for every proposed adjusted standard.
Also, the fact that lI1inois-American has to re-apply for an adjusted standard is a scenario
solely created by the Board and out of the hands of the Agency. In short, the doctrines of
res judicata
and collateral estoppel do not apply to this proceeding because an essential
element, one of the respective and required, cannot be met.
V.
Conclusion
Pun;uantto 415 lLCS 5/28.1 and consistent with 415lLCS 5/27(a), the Agency
recommends that the Board should not grant Petitioner. Illinois-American's, requested
relief from the total suspended solids and total iron discharges limitations and
requirements contained in 35 lli. Adm. Code 304.124, for its public water supply
treatment plant on the Mississippi River, located in the City of Alton, Madison County.
25
The Pan 304 effiuent standards are the absolute minimum standards for point
sources; therefore, the Board should
grant an adjusted standard from these standards only
in rare and most extraordinary circumstances. These standards are the backbone of the
CWA and the Illinois' water pollution control mechanism.
In the past, the Board
cautioned the regulaled community that the Board will rarely grant relief ITom Pan 304
effiuent standards, and the Board's grant of such relief should not be viewed as a valid
precedent.
See
/11 The Matter Of Peli/io1l for Sile Specific bceplio1l 10 Effillem
Siandards
for Ihe Illinois-American Waler CompallY. Easl SI. Lollis Trealmenl Plan',
R85-II, slip op. al II, February 2, 1989. Withoul such policy, the Mississippi River
would become a stream where most ofthe 47 point sources would dump their untreated
TSS and total iron.
In
tum. the condition of the Mississippi River that is already stressed
by the actions
of man would only worsen over time. To "restore, protect, and enhance
the quality ofthe Mississippi River," the Board should finnly establish in this proceeding
that no treatment is an unacceptable option when the technology is economically
reasonable and technically feasible.
Fairness also requires that Ulinois-American's request for reliefbe reviewed in
context with the fact that there are approximately 47 point sources who are complying
with the same TSS and total iron requirements prior to discharging into the Mississippi
River. fllinois-American has failed to show that its economic hardship is unreasonable
or
disproportionate to other dischargers. Like other businesses in the State, lIIinois-
American is
in the business ofproviding a finished product, drinking water. Like other
businesses, Illinois-American should also
be
subject to the same regulations so that we
26
can accomplish the stated purpose of the CWA. ""to restore, protect, and enhance the
quality
of the environment."
The Agency believes that the requested relief is inconsistent with applicable
federal and state law.
The Agency urges the Board to deny the Petitioner's request for
extending this
relief Like all other point sources in the State,
IlIinois~American
should
be required to meet the State'seffiuent standards.
WHEREFORE, for the reasons stated herein, the Agency recommends that the
Pollution Control Board DENY the adjusted standard Petition
ofUlinois~American
Water
Company.
Respectfully Submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION :;;_
ByC:==
-41
Sanjay
K.
Sofa
'
Assistant Counsel
Division of Legal Counsel
DATED: September 10, 2007
1021 N. Grand Ave. East
P.O. Box 19276
Springfield, lllinois 62794-9276
(217) 782-5544
27
IN THE MATIER OF:
)
)
PROPOSED EXTENSION OF ADJUSTED STANDARD )
APPLICABLE TO
ILLI OIS-AMERlCAN WATER
)
COMPANY'S ALTON PUBLIC WATER SUPPLY
)
FACILITY DISCHARGE TO THE MISSISSIPPI RIVER)
CERTIFICATE OF SERVICE
AS 2007-2
(Adjusted Standard)
I, Sanjay K. Sofat, certify on September 10,2007, I filed the above AGENCY'S POST-
HEARING BRIEF electronically with the Clerk of the Pollution Control Board and with
Carol Webb, Hearing Officer, at webbc@illinois.gov.
In
addition, I served copies
of the
foregoing electronically upon Bradley
S. Hiles and Alison M. elson, counsel for
petitioner Illinois-American, at bhiles@Blackwellsanders.com and
anelson@Blackwelisandet'.com.
An
executed copy of the AGENCY'S POST-
HEARING BRIEF, will be mailed on September 11,2007, by fit't class mail, postage
prepaid, upon the following persons:
Wilham Richardson,
Chief Lcgal
Counsel
Illinois Depanment of Natural Resources
One
Natural Resource Way
Springfield, IL 62702
Matthew
J.
Dunn
Division Chief, Environmental Enforcement
l1Iinois Anomey General
100 W.
Randolph Street, 12
dl
Floor
Chicago, IL 60601
Respectively submitted,
Illinois Environmental
Protection A=
~
~
Sanjay K. Sofat
q-
Assistant Counsel
28