BEFORE

THE

ILLThJOIS

POLLUTION

CONTROL

BOARD

CL8

No

‘.

72O

gL

Appeal)

NOTICE

OF FILING

To:

Thomas

Davis

Division

of

Legal Counsel

Illinois

Attorney

General’s

Office

500 South

Second

Street

Springfield,

IL

62706

Carol Webb

Hearing Officer

Illinois Pollution

Control

Board

1021

North

Grand Avenue

East

P.O.

Box 19274

Springfield,

IL 62794-9274

PLEASE

TAKE NOTICE

that on

the 10° day

of November,

2008,

I mailed

the following

document

for

filing

with

the

Clerk of the

Pollution

Control

Board of

the

State

of

Illinois:

Petitioner

City of

Quincy’s

Motion

for

Summary

Judgment

a copy

of

which

is

attached hereto

and

herewith

served

upon

you.

Fred

C.

Prillarnan

Joel A. Benoit

MOHAI”,

ALE

WELT, PRILLAMAN

&

ADAMI

1 N.

Old

Capitol

Plaza,

Ste. 325

Springfield,

IL 62701

Telephone:

217/528-2517

Facsimile:

217/528-2553

CITY

OF

QUINCY,

an

Illinois

municipal

corporation,

Petitioner,

V.

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

PCB No.

08-86

(NPDES

Permit

CITY OF

corp

P’

municipal

By

Joel

A.

Benoit

---

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

CITY

OF

QUINCY,

an

Illinois

municipal

)

corporation,

)

/Vrjj

Petitioner,

)

v.

)

PCB

No.

08..86

)

(NPDES Permit

Appeal)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

)

Respondent.

)

PETITIONER

CITY

OF

QUINCY’S

MOTION

FOR

SUMMARY

JUDGMENT

NOW

COMES

Petitioner

City

of

Quincy,

by

and

through

its

attorneys,

Mohan,

Alewelt,

Prillarnan

&

Adarni,

and

respectfully

submits

this

Motion

for

Summary Judgment,

filed

pursuant

to 35

Ill.

Admin. Code

101.516,

for

the

Illinois

Pollution

Control Board’s

consideration.

I.

INTRODUCTION

The

City

of

Quincy

operates

a

combined sewer

system

and

a wastewater

treatment

facility.

The

combined sewer

systm

includes

six

combined

sewer

overflows

(CSOs).

The

Illinois Environmental

Protection

Agency

(IEPA)

issued

the

City

of

Quincy a

NDES

permit

effective

April

1,

2008,

which,

in

part,

governs

discharges

from

these

CSOs.

Special

Condition

14(7)

of

the

NPDES

permit states

that

the

IEPA

has

determined

that

three

of

the

CSOs

discharge

into

“sensitive

areas”

(as

that

phrase

is

used

in

the

1994

Federal

CSO

Control

Policy) and

requires

the

City

of

Quincy,

within

three

months

of the

effective

date

of

the

permit,

to

provide

the

IEPA with

a schedule to

relocate,

control,

or

treat

discharges

from

the

three

CSOs

or

provide

adequate

justification

as

to

why

the

options

are

not

possible.

Through

this

appeal,

the

City

of Quincy

seeks

the

removal

of

these

conditions

from

the

NPDES permit.

1

---

II.

STANDARD

OF

REVIEW

FOR

MOTIONS

FOR SUMMARY

JUDGMENT

Summary

judgment

is appropriate when

the pleadings,

depositions,

admissions

on

file,

and affidavits

disclose

that there is no genuine

issue as

to any

material fact

and

the

moving party is

entitled to judgment

as a matter

of law.

Dowd

&

Dowd,

Ltd.

v.

Gleason,

181 Ill. 2d 460,

483

N.E.2d

358,

370 (1998).

In

ruling

on a motion

for summary

judgment,

the Board

“must

consider the

pleadings,

depositions, and

affidavits

strictly against the

movant

and in

favor of

the opposing

party.”

I.

Summary

judgment

“is

a drastic means

of disposing of

-

litigation,”

and therefore

should be

granted only

when the

movant’s

right to the

relief

“is clear and free

from doLlbt.”

Id, citing Purtill

v.

Hess,

11

1

Ill.2d 299, 240,

489

N.E. 2d 867,

871 (1986). However,

a party

opposing a motion

for summary

judgment may

not rest

on

its pleadings, but

must “present

a factual basis which

would arguably

entitle

[it]

to a judgment.”

Gauthier v.

Westfall, 266

Ill. App. 3d

213,

219, 639 N.E.2d 994,

999 (2d Dist.

1994).

Jersey

Sanitation

Corp.

vs.

IEPA, PCB

No. 00-82,

p.

5 (June 21,

200 1)(Permit Appeal-Land).

III.

BURDEN

OF

PROOF IN PERMIT

APPEAL

The

Illinois Environmental

Protection

Act

• .

. states

that when

granting permits,

the

JEPA “may

impose such

conditions as

may be necessary

to

accomplish

the purposes

of this Act, and

as are not

inconsistent

with the regulations

promulgated

by

the

Board hereunder.” 415

ILCS

5/39(a)

(West 2000).

To prevail

on

its

claim,

the petitioner

must show the

IEPA’s

imposed modifications

“were

not

necessary to accomplish

the purposes

of

the Act,

or

stated alternatively,

[the petitioner]

had

to

establish that its plan

would

not

result in

any

future violation of

the

Act and

the modifications,

therefore,

were

arbitrary

and unnecessary.” Browning-Feffis,

179 Ill. App.

3d

at

603, 534 N.E.2d

at 620.

IEPA

v.

Jersey

Sanitation

Corp.,

336

Ill. App.

3d 582, 593

(

4

th

Dist.

2003); see

also Noveon, Inc.

v.

IEPA, 2004 Ill. ENY

LEXIS 511 at

*15

(PCB No. 91-17)

(September

16, 2004).

Once

a permittee

establishes

a prima facie case

that a permit

condition is unnecessary,

it

is

incumbent

upon the IEPA to refute

the

prima

facie case.

John

Sexton Contractors

Co. v.

PCB,

201 Ill. App.

3d 415, 425

(

4

th

Dist.

1990). The

ultimate burden of proof,

however,

remains

with

the pennittee.

I

2

---

IV.

UNDISPUTED

FACTS

A.

The

City

of

Quincy’s

CSOs.

The

City

of Quincy’s

combined

sewer

system

and

wastewater

treatment

facility

serves

49,250

people.

(Record,

p.

38).

The

combined

sewer

system

includes

six

CSOs.

(Record,

pp.

136-147).

The

City of

Quincy’s

CSOs are

generally

identified

as follows:

Discharge

Number

Location

Receivin

Water

002

South

Side

CSO

Curtis

Creek

003

Jefferson

Street

CSO

Mississippi

River

004

Dicks-Payton

CSO

Mississippi

River

005

Broadway

Street

CSO

Mississippi

River

006

Cedar

Street

CSO

Quincy

Bay

007

Whipple

Creek

CSO

Whipple

Creek

(Record,

p.

233).

CSOs

003,

004,

and

005

are not

at

issue in

this

appeal.

B.

Outfall

002—South

Side

CSO

Outfall

002,

the

South

Side

CSO, discharges

into

Curtis Creek.

(Record,

pp.

136-137).

Outfall

002

is

located

west

of

Eighth

Street

and

south

of

Indian

Mounds

Park.

(Record,

pp.

148,

201,

and 203).

Traveling

generally

west,

the distance

from Outfall

002

to

Curtis

Creek’s

confluence with the

Mississippi

River

is

approximately

5,900

feet.

(Record,

pp.

306, 308

&

During

an

August,

2007,

survey,

the

wetted

stream

width

of Curtis

Creek

ranged

from

7

to

60 feet,

with

an

average

width

of3l.5

feet.

(Record,

pp.

305

&

308).

The

survey

divided

‘As submitted

to

the IEPA,

certain

photographs, charts,

etc.,

were

color

copies.

(Record,

pp.

302-33

1 &

33 8-359).

If this

portion

of

the

record

was not

submitted

in color

to

the

Board,

upon

notice,

the

City

of Quincy

will

provide

color copies

to the

Board.

3

---

Curtis

Creek

into

sampling

locations

(T-_J

spaced

300

feet

apart.

(Record,

p.

305).

The

upper

portion

of Curtis

Creek

(approximately

T1-T5)

is

densely populated

by

trees

and

shrubs,

making

access

to the

creek

difficult.

(Record,

pp.

306,

310

&

313).

The

understory

is

composed

of

herbaceous

vegetation

dominated

by

poison

ivy.

(Record,

p.

310).

Over

98%

of

the

stream

bank

in

the

creek’s

tipper

reaches

was

rated

difficult

for

access to the

creek,

and

moderate

to

steep

For

bank

slope.

(Record,

p.

310).

The

upper

half

of

Curtis

Creek,

having

an

average

depth

of

approximately

6.5

inches,

has

insufficient

depth

and

flow

to

support

recreational

watercraft.

(Record,

p.

309

& 310).

The

lower

portions

of

Curtis

Creek

(approximately

T6-T20) flow

through

an

industrial

area.

(Record,

pp.

306,

310,

314,

&

329-331.)

The

lower

portions

of

Curtis

Creek are

channelized

and

lined

with

concrete

in

selected

locations

prior

to

its

confluence

with

the

Mississippi

River.

(Record,

pp.

3

10-311

&

329-33

1).

The

lower

reach

before

the

confluence

with

the

Mississippi

River

has

steep

banks

that

are

densely

vegetated

with

trees

and

shrubs.

(Record,

p.

311).

Back

flow

from

the

Mississippi

River

prevented

water

depth

measurements

in

the

lower

reaches

of

Curtis

Creek,

but

the

water

depth

in

the

lower

reaches was

considerably

higher

than

in

the

upper

reaches.

(Record,

p.

309

(compare

Ti

measurements

to Ti

1

measurements)

&

311).

No

established

beaches

or

public

access

points

to

the

creek were

present

along

Curtis

Creek.

(Record,

p.

310). Evidence

that

primary

contact

recreation

was

occurring,

or

had

occurred, was

not

observed

in

Curtis

Creek.

(Record,

pp.

310

& 311), Water

depth

is not

deep

enough (excluding

the

lower

reaches

of

Curtis

Creek)

to

support

swimming

or

any

other

water

activity that

would

result

in

full

body

immersion.

(Record,

p.

311).

“Based

upon

the

physical

and

hydrologic

configuration

of

the

stream

channel

to

support

primary contact

recreation,

the

probability

that

the

stream

is

accessed

by

the

public

on a

routine

basis

is

low.”

(Record,

p.

311).

The

IEPA took

photos

of

Outfall

002

on March

28,

2007.

(Record,

p.

201).

On

October

9,

2007,

the

IEPA returned

to

take

photos

of a

parking area

to

the

north

of

Outfall 002,

said

4

---

parking

area

having

a

hiking

trail

leading

north,

apparently

providing

a

route between

the

parking

area

and

Indian

Mounds

Park.

(Record,

pp.

202-203).

C.

Outfall

006—Cedar

Street

CSO

Outfall

006, the

Cedar

Street

CSO,

is

located

in Riverview

Park

in the northwestern

portion

of

the

city.

(Record,

pp.

148,

204,

205

&

283). The

Cedar

Street

Outfall

006

discharges

directly

into

a

paved

channel

which

carries

any overflow

approximately

1/4

mile west

to its

receiving

water.

(Record,

pp.

148,

204

&

2 12-215).

Approximately

Y

2

the

length

of

the

paved

channel

travels

through

Riverside

Park.

(Record,

p.

148).

Although

identified

as discharging

into

Quincy

Bay,

(Record,

pp.

144-145),

the

water

discharged

from

the

paved

channel

flows

into

the east

side

of

the

Mississippi

River

channel

south

of the

Quinsippi

Island

Bridge.

(Record,

pp.

338, 339,

and

343). The

Mississippi

River

channel

separates

Quinsippi

Island

from

the

Illinois

mainland.

(Record,

p.

343).

Quincy

Bay

itself,

a backwater,

shallow

bay,

begins

approximately

1,800

feet

upstream

of

Outfall

006.

(Record,

p.

338).

The Mississippi

River

channel

was

surveyed

on

September

18,

2007.

(Record,

p.

338).

The

northernmost

point

of

the

survey

was

near

Cedar Creek’s

confluence

with

the

Mississippi

River

channel,

and

the southernmost

point of

the survey

was

the southern

tip

of

Quinsippi

Island.

(Record,

p.

339).

Water

depths

are sufficient

for

boating

in the

western

and

middle

portions

of

the channel.

(Record,

p.

339).

The

conclusions

reached

from

this survey

are

that

the

existing

uses

of

the

channel

are

primarily

recreational

navigation

and

fishing.

(Record,

p.

340).

There

is

a marina

on

Quinsippi

Island

with

approximately

150

boats.

(Record,

p.

340).

Fishing

was

observed.

(Record,

p.

339).

Significant

boating

activity

was

observed.

(Record,

p.

339).

There

are parks

along the

east side

of

the

channel,

but

physical

features

render

the

channel

an unsuitable

place

for

swimming.

(Record,

p.

340).

There

are

no

established

beaches

or

signs

of

primary

5

---

contact

along

either

bank of

the

channel.

(Record,

p.

339). During

the

survey,

no

primary

contact

activities

were

observed,

and

there

was

no

evidence

that

they

had

occurred

in the

past.

(Record,

p.

340).

D.

Outfall

007—Whipple

Creek

CSO

Outfall

007 discharges

into

Whipple

Creek.

(Record,

pp.

146-147).

Outfall

007

is

located

in

the

northwestern

portion

of the

city,

east

of

Fifth Street

and

north

of

Locust

Street.

(Record,

p.

148).

From

Outfall

007

to the end

of

Whipple

Creek

is

approximately

3,330

feet.

(Record,

p.

305).

Whipple

Creek

was surveyed

in

August,

2007.

(Record,

p.

305).

From

Outfall

007 to

the

creek’s

tenriination,

the

wetted

steam

width

of Whipple

Creek

ranges

from

1 to

18

feet,

with

an

average

stream

width

of 8.8

feet. (Record,

p.

305).

Its average

depth

is

1.5 inches.

(Record,

p.

305).

The

creek’s

bottom

is

primarily

exposed

bedrock,

with

limited

areas

of cobble

and

gravel.

(Record,

p.

305).

Over

95%

of

the

stream

bank

was rated

difficult

for

access

to

the

creek,

and

moderate

to

steep

for bank

slope;

the

creek’s

banks

are densely

populated

by

trees

and

shrubs,

and the

understory

is

composed

of

herbaceous

vegetation

dominated

by

poison

ivy.

(Record,

p.

305).

There

was no

visual

evidence

of

recreation

activity,

past

or

present.

(Record,

p.

308).

Whipple

Creek

is too

shallow

to

support

watercraft,

and

there

are no

beaches

or

public

access

points

on the

creek.

(Record,

p.

308).

The

IEPA

photographed

Outfall

007

on March

28,

2007;

these Spring

photographs

show

little

water

in

Whipple

Creek.

(Record,

p.

206).

On

October

9,

2007,

the

IEPA

took

photos

of a

house

located

near Whipple

Creek

and downstream

from

Outfall

007.

(Record,

pp.

207-208).

The

caption

of

one

photo

states

that

Whipple

Creek

is 30-50

feet

behind

a

trampoline

depicted

in

the photo

and that

there

is no

bai-rier

or

fencing

between

the

trampoline

area

and Whipple

Creek.

(Record,

p.

208).

6

---

E.

The

Permitting

Process

No

prior

NPDES

permit

issued

to

the

City

of

Quincy

has

ever

included a

determination

that

any

of

its

CSOs

discharged

to

sensitive

areas.

(Record,

p.

300).

In

July,

2006,

the

City

of

Quincy

sent

the

IEPA

a

NPDES

permit

renewal

application.

(Record,

p.

21).

On

April

10,

2007,

the

IEPA

mailed

the

City

of Quincy’s

draft

NPDES

permit

and

public

notice/fact

sheet

to

the

USEPA. (Record,

p.

220).

Like

all

previous

penriits,

Special

Condition

14(7)

of the

draft

permit

states

that

the

IEPA

had

tentatively

determined

that

none

of

the

CSOs

discharged

into

sensitive

areas.

(Record,

p.

234).

Special

Condition

14(10)

of the

draft

permit

requires

the

City

of

Quincy

to

develop

a Long-Term

CSO

Control

Plan

(“LTCP”)

within

24

months

of

the

effective

date

of

the

permit.

(Record,

pp.

236-237).

When

developing

its

LTCP,

the

draft

permit

required

the

City

of

Quincy

to

consider

sensitive

areas,

as

required

by

the

1994

Federal

CSO

Control

Policy.

(Record,

p.

236).

On

April

20,

2007,

the

City

of

Quincy

mailed

IEPA

a letter

commenting

on

the draft

permit.

(Record,

pp.

243-244).

On

June

7,

2007,

IEPA

Field

Operations

Section

mailed

a

letter

to

CDM,

the

City

of

Quincy’s

engineers,

concerning

its

review

of

a

September

11,

2006,

CSO

Assessment

prepared

by

CDM

for

the City

of

Quincy

and

offering

comments

“...for

the

City

consideration

during

the

development

of

their

CSO

long-term control

plan

(LTCP).”

(Record,

p.

241).

Without

setting

forth

supporting

facts,

the

letter

states

that

all

of

the

receiving

streams

to

which

the

City

of

Quincy’s

CSOs discharge

should

be characterized

as

having

primary

contact

and

aquatic

life

designated uses.

(Record,

p.

241).

The

letter

further

states:

“Whipple

Creek,

Cedar

Street

and

South

Side

CSOs

discharge

either

into

or

upstream

from

parks

or

public

use

areas.

The

City

should

consider

relocating

or eliminating

these

discharge locations.”

(Record,

p.

241).

The

letter

concludes

by

listing

the

elements

that

should

be

included

in

the

City

of

Quincy’s development

of

its

LTCP,

including the

consideration

of

sensitive

areas.

(Record,

p.

242).

7

---

A meeting

was

held

between

JEPA,

CDM,

and

the

City

of

Quincy

on

July 12,

2007,

during

which

the

topic of

sensitive

areas

was

discussed.

(Record,

p.

268).

During

the

meeting,

it

was

agreed

that

none

of

the

City

of

Quincy’s

CSOs

discharged

to

sensitive

areas,

but

that

the

City

of

Quincy

would

place

special

emphasis

on

CSO controls

for

outfalls

002,

006,

and

007

when

developing

its

long-term

control

plan.

(Record,

p.

268).

On July

31,

2007,

the IEPA

sent a revised

draft permit,

public

notice

/fact

sheet

along

with

a

cover

letter

to

the City

of

Quincy.

(Record,

pp.

245-267).

The cover

letter notes

that

Special

Condition

14(7)

had

been

changed

to state

that

outfalls

002,

006, and

007

discharge

to

sensitive

areas.

(Record,

p.

245).

In the

revised,

draft

pennit,

Section

14(7)

states:

Pursuant

to

Section

II.C.3

of

the

federal

CSO

Control

Policy

of 1994,

sensitive

areas

are

any

water

likely

to be impacted

by

a

CSO

discharge

which

meet

one

or

more of

the

following

criteria:

(1)

designated

as

an Outstanding

National

Resource

Water;

(2) found

to contain

shellfish

beds;

(3)

found

to contain

threatened

or

endangered

aquatic

species

or

their habitat;

(4)

used

for

primary

contact

recreation;

or,

(5)

within

the protection

area

for

a drinking

water

intake

structure.

The JEPA

has determined

that

outfall(s)

002,

006

and

007

discharge

to

sensitive

area(s).

Within

three

(3)

months

of the

effective

date

of this

Permit,

the Permittee

shall

submit

two

(2)

copies

of either

a

schedule

to relocate,

control,

or treat

discharges

from

these

outfalls.

If

none of

these

options

are possible,

the Permittee

shall

submit

adequate

justification

as to

why these

options

are not

possible.

Such

justification

shall

be in

accordance

with Section

II.C.3

of

the National

CSO

Control

Policy.

The

IEPA

has

determined

that

none of

the

other

outfalls

listed

in this

Special

Condition

discharge

to

sensitive

areas.

However,

if infonnation

becomes

available

that causes

the

JEPA

to

reverse

this determination,

the

IEPA

will notify

the Permittee

in

writing.

Within

three

(3)

months

of

the

date

of

notification

or other

date

contained

in

the

notification

letter,

the

Permittee

shall

submit

two (2)

copies

of

either

a

schedule

to

relocate,

control,

or

treat

discharges

from

these

outfalls.

If

none of

these

options

are possible,

the

Pennittee

shall

submit

adequate

justification at

that

time

as to

why

these

options

are not

possible.

Such

justification

shall be

in accordance

with

Section

II.C.3

of the

National

CSO

Control

Policy.

(Record,

p.

261).

On

August

8,

2007, the

City

of Quincy

mailed

a letter

to

the IEPA

objecting

to

the

sensitive

areas

designations

in

the

revised,

draft permit.

(Record,

p.

268).

The

letter

states

that

these designations were

contrary

to

the agreement

reached

at the

July

12,

2007,

meeting,

during

which

it

was agreed

that

none

of

the

CSOs

discharged

into sensitive

areas,

but

that

the City

of

8

---

Quincy

would

place

emphasis

on CSO

controls

at

CSOs

002,

006,

and

007.

(Record,

p.

268).

On

August

28,

2007,

the

IEPA

responded

to

the

City

of

Quincy’s

objection to

the

designation

of the

three

CSOs

as

discharging

to

sensitive

areas.

(Record,

p.

278).

The

IEPA

did

not

disagree

that,

at the

July

12, 2007,

it was

agreed

that

none

of

the

CSOs

discharged

into

sensitive

areas,

but

instead

stated:

Current

Agency

practice

is

to designate

streams

through

residential areas

or

public

use

areas

as having

a

high

probability

for primary

contact

activity.

Additionally,

the

1994

CSO

Control Policy

lists

recreational

activities

as primary

contact

in

its

definition

of

a

sensitive

area.

The

Agency

modified

the

Permit

to

indicate

that

outfalls

002,

006

and

007

discharge

to

sensitive

areas

because

of

the

above

stated

reasons.

Item

7

of

Special

Condition

14

of

the Permit

gives

the

Permittee

the

right

to submit evidence

to

challenge

this

determination.

(Record,

p.

278)(emphasis

added).

On

September

13,

2007,

the

City

of

Quincy

mailed

a letter

to

the

IEPA

in

which

it

repeated

its

objection

to

the

IEPA’s

sensitive

area

determinations

as

being

factually

unsupportable

and

further,

that

these

determinations

would

have

disastrous

financial

implications

for

the

City

of

Quincy.

(Record,

p.

300-3

01).

Attached

thereto

were

cost

estimates

for

terminating

discharges

at

CSOs

002,

006,

and

007,

estimates

which

ranged

from

$28

million

to

$139

million.

(Record,

p.

303).

Also

attached

was

a

September

11,

2007,

CDM

memo

describing

a survey

conducted

to

determine

if any

of

the

CSOs

discharged

into

sensitive

areas

and

concluding

that

they

did

not.

(Record,

p.

304-33

1).

On

the

same

date,

at

the

City

of

Quincy’s

request,

IEPA

and

City

of Quincy

representatives

met

to

discuss

the

City

of

Quincy’s

continued

objection

to the

IEPA’s

sensitive

area

determinations.

(Record,

p.

300,

301,

and

333).

On

September 26,

2007,

the

City

of

Quincy’s

legal

counsel

sent

a

letter

with

supporting

documentation

regarding

the

Mississippi

River

channel

not

being

a

sensitive

area

and

revised

cost

estimates

for

eliminating

the

three

CSOs.

(Record,

pp.

335-359).

The

cost

estimate

states

that,

if

the

sensitive

area

determinations

remain

in the

permit,

redirecting

CSOs

002,

006,

and

007

would

not

improve

overall

water

quality,

and

suggests

a likely

resolution

of

either

sewer

separation

or

storage/treatment

at

an estimated

cost

of

$60

million

to

$160

million.

(Record,

p.

9

---

359).

If

the sensitive

area

designations

are removed

from

the permit,

CSO

controls

are estimated

to cost

$30

million

to

$50

million.

(Record,

p.

359).

The

September

26,

2007,

letter

requests

that

the

IEPA

take into

consideration its

earlier

determination

that

none

of the

City

of Quincy’s

CSOs

discharged

into sensitive areas.

(Record,

p.

336).

In

support

of

the

request

to

remove

the

sensitive

area

determinations

from

the

City

of

Quincy’s

permit,

the

letter

also

requests that

the IEPA

consider

that

it

has

not

designated

the

waters

similarly

situated

municipalities’

(including

Alton,

Belleville,

Wood

River,

LaSalle,

Decatur,

and

Hinsdale)

CSOs

discharge

to

as

sensitive

areas

in

their

NPDES

permits.

(Record,

p.

336).

On

October

15, 2007,

the City

of

Quincy’s

mayor

mailed

a

letter

to

the

IEPA

director

asking

him

to

look

into the

IEPA’s

sensitive

area

determinations.

(Record,

p.

360).

The

IEPA

responded

in

a

letter

dated

March

27,

2008.

(Record,

p.

363).

The

IEPA’s

March

27,

2008,

letter

advises

the

City

of Quincy’s

mayor

that

the

IEPA

received

no

comments

during

the

public

comment

process

(other

than

fiom

the

City

of

Quincy

regarding

the IEPA’s

sensitive

area

determinations)

and

explains

the

IEPA’s

sensitive

areas

determinations

as follows:

The Agency

changed

the

classification

of

the outfalls

in question as

sensitive

areas

due

to potential

human

contact

because

of

residential

and

public

use

areas

downstream

of the

discharges.

This

classification

means

these

discharges

should

be

studied

first

and

any

CSO

controls

proposed

should

be implemented

at

these

locations

prior

to

controls

at

CSOs

that

discharge

directly

to the

Mississippi

River

which

will

receive

a higher

dilution.

If

it is

determined

from

the

CSO

Long

Term

Control

Plan

(LTCP)

that

these

discharges

cannot

be

eliminated, treated

economically

or

relocated,

item

3.c

of

the

1994

CSO

Control

Policy

states

that

remaining

discharges

can

be reassessed

in

future

permits

as

new

techniques

or

financial

capabilities

change.

(Record,

p.

363).

On

March

27,

2008,

the

IEPA

mailed

the final

NPDES

permit

to the

City

of

Quincy.

(Record,

p.

369).

This

final

permit

contains

the

Section

14(7)

here

appealed.

(Record,

p.

380).

10

---

V.

THE

1994

CSO

CONTROL

POLICY

The

Clean

Water

Act

requires

all

NPDES

pennits

to comply

with

the

1994

CSO

Control

Policy

(“1994

Policy”).

33

U.S.C.A. 1342(q)(l).

The

1994

Policy establishes

a

consistent

national

approach

for

controlling

discharges

from

CSOs. (1994

Policy,

Section

IA). The

goal

of

the

1994

Policy is to

achieve

cost

effective

CSO

controls

that

ultimately meet

appropriate

health

and

environmental

objectives.

(1994

Policy,

Section

I.A).

The

1994

Policy

allows

a

phased

approach

to

implementation

of

CSO

controls

considering

a community’s

financial

capability.

(1994

Policy,

Section

IA).

Initially,

the

1994

Policy

reiterates

that

dry

weather

discharges

from

CSOs are

prohibited.

(1994

Policy,

Section

I.B

and

yB).

Then,

the

1994

Policy’s

CSO

control

focus

is

to

insure

that

permittees implement

the

nine

minimum

controls

for

CSOs,

(1994

Policy,

Section

hA).

The

City

of

Quincy

has

satisfied

these

phases.

The

1994

Policy then

requires

the

permittee

to develop

and

implement

a

long

term

CSO

control

plan

that

will

ultimately

result

in

compliance

with

all

Clean

Water

Act

requirements.

(1994

Policy,

Section II.C).

The

minimum

elements

of

the

long

term

CSO

control

plan

are:

(1)

Characterization,

Monitoring,

and

Modeling

of

the

Combined

Sewer

System;

(2)

Public

Participation;

(3)

Consideration

of

Sensitive

Areas;

(4)

Evaluation

of

Alternatives;

(5)

Cost/Performance

Considerations;

(6)

Operational

Plan;

(7)

Maximizing

Treatment

at

the

Existing POTW Treatment

Plant;

(8)

Implementation

Schedule;

and

(9)

Post-Construction

Compliance

Monitoring

Program.

(1994 Policy,

Section

TIC).

The

third

element, Consideration

of Sensitive

Areas,

is at

the

heart

of

this

NPDES

permit

appeal.

In

regard

to

this

element,

the

1994

Policy

provides:

EPA

expects

a

perrnittee’s

long-term

CSO

control plan

to

give

the

highest

priority

to

controlling

overflows

to

sensitive

areas.

Sensitive

areas,

as

determined

by

the

NPDES authority

in

coordination

with

State

and

Federal

agencies,

as

appropriate,

include designated

Outstanding

National

Resource

Waters,

National

Marine

Sanctuaries,

waters

with

threatened

or

endangered

species

and

their

habitat, waters

with

primary

contact recreation,

public

drinking

water

intakes

or their

designated

protection

areas,

11

---

and

shellfish

beds.

(1994

Policy,

Section

II.C.3)(ernphasis

added).

When

addressing

the eighth

element

(“Implementation

Schedule”),

schedules

for

implementation

of

the

CSO controls

maybe

phased

based

on the

relative

importance

of adverse

impacts

upon

water

quality

standards

and

designated

uses, priority

projects

identified

in

the

long-

tern-i

plan,

and

on

a permittee’s

financial

capability.

(1994

Policy,

Section

11.8).

Construction

phasing,

however,

should

consider

eliminating

overflows

that discharge

to sensitive

areas

as the

highest

priority.

(1994

Policy,

Section

II.8.a).

NPDES

authorities

establish

the

timetable

for

the development

of the

long-term

CSO

control

plan

on a

case-by-case

basis

dependent

on

the

complexity

of

the planning

process.

(1994

Policy,

Section

II.C).

In

the

present

case,

the

NPDES

permit

requires

the

City of

Quincy

to

submit

its

long-term

control

plan by

August

1, 2009.

(Record,

p.

382).

Once

the

long-term

control

plan is

agreed

upon,

it is

generally

incorporated

into

the

next issued

NPDES

permit

for

implementation.

(1994

Policy,

Section

IV.B.2.).

VI.

THE

JEPA’S

DECISION

IS EITHER

BASED

ON

AN IMPROPERLY

PROMULGATED

RULE

OR

AN IMPROPER

INTERPRETATION

OF

THE

PHRASE SENSITIVE

AREA.

The

stated

basis

for the

JEPA

changing

the

designation

of

the

receiving

waters

of the

three

CSOs

at

issue to

sensitive

areas

is:

(a)

Current

Agency

practice

is to

designate

streams

through

residential

areas

or

public

use areas

as

having

a high

probability

for

primary

contact

activity

(Record,

p.

278);

(b)

The 1994

CSO Control

Policy

lists

recreational

activities

as

primary

contact

in

its

definition

of a

sensitive

area

(Record,

p.

278);

or

(c)

There

is potential

human

contact

because

of

residential

and

public

use areas

downstream

of the

discharges

(Record,

p.

363).

12

---

An

unstated

basis

for

the

IEPA’s

sensitive

area

designations, but

one

suggested

by

the

Record,

is that

the

IEPA

may

believe

that a

1994

Policy

“sensitive

area”

is the

same

as

a

Section

3

02.209(a)

“protected

water.”

Alone

or

together,

these

bases

for

the IEPA’s

designation

of

the

waters

at

issue

as

sensitive

areas

are

inconsistent

with

the

1 994

Policy

and,

accordingly,

were

improperly

relied

upon

by

the

IEPA

in

making

its sensitive

area

determinations.

A.

There

is

no

properly

promulgated

rule

providing

that

all

streams

which

flow

through

residential

or public

use areas

are sensitive

areas

because

they

have

a

high

probability

for

primary

contact

activity,

and,

thus,

the

JEPA

cannot

rely

on

its

current

practice

to support

its

decision

to

designate

the

CSO

receiving

waters

as

sensitive

areas.

To

properly

interpret

the

IEPA’s

statement

that

its

current

practice

is

to

designate

streams

through

residential

areas

or

public

use

areas

as

having

a

high

probability

for

primary

contact

activity,

it must

be

recalled

that

the

IEPA

was

responding

to

the

City of

Quincy’s

objection

to the

IEPA’s

classification

of the

three

receiving

waters

as sensitive

areas.

Placed

in

its

proper

context,

then,

the

IEPA’s

statement

is

that

its current

practice

is to designate

streams

through

residential

areas

or public

use

areas

as sensitive

areas.

The

IEPA’s

current

practice,

one

directly

contrary

to the

IEPA’s

earlier

practice

whereby

none

of the

City

of

QLlincy’s

CSOs

were

deemed

to

discharge

into

sensitive

areas,

is

an improperly

promulgated

rule

that

violates

the

Illinois

Administrative Procedure

Act.

5 ILCS

100/1

- 100/15-10.

Under

the

Illinois

Administrative

Procedure

Act,

a “nile”

is

an

“agency

statement

of

general

applicability that

implements,

applies,

interprets,

or

prescribes

law

or

policy

“ 5

ILCS

100/1-70.

Through

its current

practice

statement,

the

IEPA

is prescribing

new

law

and

policy

of

general

applicability,

and,

in

the

City

of

Quincy’s

NPDES

permit,

it is

applying

that

new

law and

policy

to the

City

of

Quincy.

Because

it is

setting

forth

a new

rule

of general

applicability,

the

IEPA

was

required

to

follow

the

proper

procedure

for

the

new

nile’s

adoption,

which

was

not

done;

accordingly, the

rule

is invalid.

SenParkNursing

Center

v.

Miller,

104

Ill.

2d

169,

181

13

---

(1984);

Illinois

Ayers

Oil

Company

v.

IEPA,

2004

Ill.

ENV

LEXIS

195 at

*38.41

(PCB

No.

Q3.

214

(UST

Appeal)(April

1,

2004).

Illinois

courts

and

the

Board

have

repeatedly

found

such

improperly

promulgated

administrative

rules

invalid.

For

example,

in

Platolene

500.

Inc.

v,

IEPA,

1992

Ill.

ENV

LEXIS 341 (PCB

No.

92-9

(UST)(May

7, 1992)),

the

IEPA

had published

a

guidance

manual

setting

forth

expenses

reimbursable

from

the

LUST

fund.

I

at

5.

Platolene

appealed

the

IEPA’s

decision

not

to

reimburse

it for

replacing

concrete,

an expense

the

guidance

manual

arguably

allowed.

j,

at

*3

& ‘8.

The

IEPA,

in

part,

countered

by arguing

that the

replacement

of concrete

is not

the

reassembly

of

a

structure

as required

by

the

guidance

manual.

Id.

at

*3

On

its

own

initiative,

the

Board

analyzed

whether

the guidance

manual

was

an enforceable

rule.

Looking

to the

Illinois

Administrative

Procedure

Act, the

Board

found

that

the

guidance

manual

was a

nile:

it was

clearly

an

IEPA

statement

of general

applicability;

it

implemented

a

policy

of the

IEPA,;

it was

not

a statement

dealing

with

the

internal

management

of

the

IEPA;

and

it

did affect

the

rights

and

procedures

available

to

people

and

entities

outside

the

IEPA.

Id.

at

*7.8.

As

the guidance

manual

had not

been

subjected

to

the

applicable

notice

and

comment

requirements

of

the

Illinois

Administrative

Procedure

Act,

however,

the Board

found

it invalid,

and

neither

party

could

rely

upon

it.

j..

at

*6

&

*8.9.

The

IEPA’s

current

practice

of

designating

all

streams

flowing

through

residential

or

public

use

areas

as

sensitive

areas

is

likewise

an improperly

promulgated

rule

that

is

invalid.

Marathon Petroleum.

Co.

v.

IEPA,

1989

Ill.

ENV

LEXIS

775

at

*28

(PCB

No.

88-179)(July 27,

1989)(IEPA may

not

make

regulations

more

stringent

by

application

of an

infonnal

policy).

Accordingly,

it cannot

form

the

basis

for

the

IEPA’s

determination

that

the

three

CSOs

discharge

to

sensitive

areas.

B.

The

1994

CSO

Control

Policy

does

not

list

recreational

activities

as

primary

contact

in

its definition

of

a sensitive

area.

In

support

of

its

sensitive

area

determination,

the IEPA

states

that

the

1994

CSO

Control

14

---

Policy

lists

recreational

activities

as

primary

contact

in

its

definition

of

a sensitive

area

(Record,

p.

278).

It does

not.

The

1994

Policy

states

that

sensitive

areas

are

“waters

with

primary

contact

recreation.”

Not

every

recreational

activity

is

a primary

contact

recreation

activity.

The

1994

Policy provides

swimming

as

an

example

of primary

contact

recreation.

(1994

Policy,

Section

III.B;

see

also

35

Ill.

Admin. Code

301.355

(defining

primary

contact

water

use

and

giving

swimming

as an

example

of such

use);

Record,

p.

7,

CSO

Guidance

for

Permit

Writers,

Exhibit

3-7

(giving

swimming

as

an example

of primary

contact

recreation)).

Thus,

swimming

is

a primary

contact

recreation activity,

but

recreational

activities

such

as

fishing,

boating,

and

any

limited

contact

incident

to

recreational

shoreline

activities

are

not

primary

contact

recreation activities.

35111.

Admin.

Code.

30

1.308

(defining

secondary

contact

activities);

(Record,

p.

19,

Guidance:

Coordinating

CSO

Long-Term

Planning

with

Water

Quality

Standards Reviews

(“Examples

of

secondary

contact

activities

include

canoeing,

motor

boating,

and

fishing.”)).

Accordingly,

even

if

a

CSO

receiving

water

is used

for some

recreational

purpose

(e.g.,

fishing), that

does

not

mean

that

the

water

is

a sensitive

area

under

the

1994

Policy.

Thus,

the IEPA’s

erroneous

reading

of the

1994

Policy

cannot

support

the

IEPA’s

sensitive

area

determinations.

C.

Potential human

contact

because

of

residential

and

public

use

areas

downstream

of

a

CSO

discharges

does

not

render a water

a

sensitive

area

under

the

1994

Policy.

The

IEPA

states

that

the

CSO

receiving

waters

are

sensitive

areas

because there

is

potential human

contact

because

of

residential

and

public

use

areas

downstream

of

the

discharges.

(Record,

p.

363).

This

statement

is

inconsistent

with

the

1994

Policy.

There

is

the

potential

for

human

contact

with

any

water.

And,

it

would

be

surprising

if

the

likelihood

of

potential

contact

did

not

increase

as the

number

of persons

who

could

potentially

touch

the water

increased

due

to

the

water

flowing

near

residential

areas

or

public

use

areas

(leaving aside

the

issue

of

what

these

broad

terms

might

mean,

e.g.,

Is

one

farm

hoLse

15

---

considered

a

residential

area

under

the

JEPA’s

new

practice?

Is

a

roadway

bridge over

a

stream

a

public

use

area

under

the

IEPA’s new

practice?).

Insofar

as

sensitive

areas

are

concerned,

however,

the

1994

Policy’s

concern is

not

every

potential

human

contact

with

CSO

receiving

waters.

When

human contact

with

water

is

the

issue,

as

here,

the

1994

Policy’s

concern

is waters

with

primary

contact

recreation,

e.g.,

recreational

use

in

which

there

is

prolonged

and

intimate

contact

with

the

water

involving

considerable

risk

of

ingesting

water

in

quantities

sufficient

to

pose

a

significant

health

risk,

such

as swimming

and

water

skiing.

35

Ill.

Admin. Code

301.355.

The

1994

Policy provides

swimming

as

an

example

of

primary

contract

recreation.

(1994 Policy,

Section

III,

B).

Thus,

simply because

people

may come

into

contact

with

water

while

fishing

from

a

stream

bank,

this

is

not

a

valid

basis

for

declaring

the

stream a sensitive

area. The

focus

of

the

1994

Policy

is

primary

contact

recreation,

not

every

conceivable

activity

that

may

result

in

a stream’s

water

coming

into

contact

with

a

person’s

skin.

The

IEPA’s

interpretation

is

further

improperly

broad

in

that

it

states

that

the

definition

of

sensitive

area

extends

to

“potential”

contact,

while

the

1994

Policy’s

concern

is

“waters

jh

primary

contact

recreation”

(1994

Policy,

Section

II.C)(emphasis

added);

not

waters

with

potential

primary

contact

recreation.

The

NPDES

permit

itself

recognizes

that,

pursuant

to

the

1994

Policy,

sensitive

areas

are

waters

“used

for

primary

contact

recreation.”

(Record,

p.

380)(emphasis

added).

The

1994

Policy’s

plain

language

demonstrates

that

its

concern

is

with

the

current

use

or

current

designation

(e.g.,

Outstanding

National

Resource

Waters)

of

receiving

waters,

not

their

possible,

future

use

or

designation.

Thus,

the

1994

Policy

states

that

sensitive

areas

are

designated

Outstanding

National

Resource

Waters;

it does

not

state

that

every

water

that

could

in

the

future

be

designated

an

Outstanding

National

Resource

Water

is

currently

a

sensitive

area.

The

1994

Policy

states

that

sensitive

areas

are

waters

with threatened

or

endangered

species

and

their habitat;

it

does

not

state

that

every

water

that

could

in

the

future

become

the

home

to

16

---

threatened

or

endangered

species

is currently

a sensitive

area.

Similarly,

the

1994

Policy

states

that

sensitive areas

are

waters

with

primary

contact

recreation;

it

does

not

state

that

potential

human

contact,

of

any type,

renders

a water

a sensitive

area.

Finally,

the

JEPA’s

statement

that

residential

or

public

use

areas

downstream

from

CSOs

are

sensitive areas

is

wholly

inconsistent

with

the

1994

Policy’s

definition

of

sensitive

area.

The

1994

Policy

does

not even

mention

residential

or public

use

areas

when

defining

sensitive

areas.

For

all

of

these

reasons,

the

IEPA’s

statement

that

the

CSO

receiving

waters

are

sensitive

areas

because there

is

potential

human

contact

because

of

residential

and

public

use

areas

downstream

of the

discharges,

a statement

totally

inconsistent

with

the

1994

Policy’s

definition

of

sensitive

area,

cannot

support

the IEPA’s

designation

of

the

waters

at issue

as

sensitive

areas.

D.

A

1994

Policy

“sensitive

area”

is not

the

same

as

a

Section

302.209(a)

“protected

water.”

By

stating

that

current

IEPA

practice

is

to designate

streams

through

residential

areas

or

public

use

areas

as having

a high

probability

for

primary

contact

activity

and,

thus,

rendering

them

sensitive

areas

under

the

1994

Policy,

and

by

stating

that

potential

human

contact

because

of

residential

and

public

use

areas

downstream

of

a

CSO

discharges

renders

the

waters

sensitive

areas,

the IEPA

may

be

taking

the

position

that

Section

302.209(a)

“protected

waters”

are

equivalent

to

1994

Policy

“sensitive

areas.”

The

basis

for

this

supposition

is that

the

record

includes

portions

of

the

Board

Order

amending

the

regulation

which

is

now

Section

302.209.

(Record,

pp.

1-4).

Protected

waters

and

sensitive

waters,

however,

are

not

equivalent.

In

relevant

part,

Section

3 02.209(a)

provides:

Protected

waters

are defined

as

waters

which,

due

to

natural

characteristics,

aesthetic

value

or

environmental

significance

are

deserving

of

protection

from

pathogenic

organisms.

Protected

waters

will

meet

one

or

both

of

the

following

conditions:

1)

presently

support

or

have

the

physical

characteristics

to

support

primary

contact;

2)

flow

through

or

adjacent

to

parks

or

residential

areas.

17

---

35

Ill. Admin.

Code

302.209(a).

As

is

evident

from

reading

Section

302.209,

and

as stated

by

the Board

in

that

part

of its

order

included

in

the record,

“[a]

protected

water

is

[]

more

encompassing

than

the

primary

contact

waters.”

(Record,

p.

2).

Thus,

a

water

might

be

both

a

protected

water

and

a

sensitive

area

if it presently

supports

primary

contact

activities

(e.g.,

a swimming

area).

But,

if

the water

only

has

the

physical

characteristics

to

support

primary

contact

activities,

or

if

it

only

flows

through

or

adjacent

to

parks

or

residential

areas,

it is

a

protected

water,

but

not

a sensitive

area.

Further,

if the

IEPA

is

relying

upon

Section

302.209(a),

it

is

ignoring

Section

302.209(b)

which

provides:

Waters

unsuited

to

support

primary

contact

uses

because

of

physical,

hydrologic

or geographic

configuration

and

are

located

in

areas

unlikely

to be

flequented

by

the

public

on

a

routine

basis

as

determined

by

the

Agency

at

35

Ill.

Adm.

Code

309

Subpart

A,

are

exempt

from

this

standard.

35111.

Admin.

Code

302.209(b).

Nothing

in

the record

suggests

that

the

JEPA

considered the

Section

302.209(b)

exemption.

Instead,

it appears

that

the

JEPA

made

its

initial

decision

based

on

its belief

that

the

waters

were

sensitive

areas

because

they

flowed

through

residential

or public

use areas,

and

the

IEPA

never

considered

that

the

waters

were

unsuited

to

support

primary

contact

uses

or

were

in

areas

unlikely

to be

frequented

by the

public

on

a routine

basis.

The

IEPA

ignored

the

information submitted

by the

City

of

Quincy

which

demonstrated

that the

waters

are

not

used

for

primary

contact

recreation,

were

unsuited

to

support

primary

contact

uses,

and

are

located

in

areas

unlikely

to

be

frequented

by the

public

on

a routine

basis.

Even

if

sensitive

areas

and

protected

waters

are

equivalent, which

the

City

of

Quincy

does

not

concede,

the IEPA

should

have

considered

whether

the

waters

had

the

potential

for

primary

contact

activities

and

whether

the

waters

were

likely

to

be

frequented

by the

public

on

a

routine

basis.

Although not applicable

to

the

City

of Quincy’s

CSO

discharges, Part

378

of the

Board’s

regulations shed

light

on

the

factors

to

consider

when

attempting

to

determine whether

a water

18

---

has

the

potential

for

primary contact

uses.

Part

378,

entitled

“Effluent

Disinfection

Exemptions,”

allows

certain

NPDES permit

dischargers

to

cease

effluent

disinfection

on

a

seasonal

or

yearround

basis.

35

Ill.

Admin.

Code

378.101.

Under P art

378,

one

basis

for

granting

an effluent

disinfection

exemption

is

that

the

water

is

an

“unprotected

water,”

one

that

does

not

presently

support

or

have

the

physical

characteristics

to

support

primary

contact

activities.

35

Iii.

Admin.

Code

378.101(d).

Unprotected

waters

are

not

required

to

comply

with

the

fecal

coliform

standards.

“Characteristics

of unprotected

waters

include

but

are

not

limited

to the

following,

and

waters

must

possess

one

or

more

of

these

characteristics

to

be

classified

as

unprotected

waters:

a)

Waters with

average

depths

of

two

feet

or

less

and

no

pronounced

deep

pools

dtiring

the

summer

season;

b)

Waters

containing

physical

obstacles sufficient

to

prevent

access

or

primary

contact

activities;

or

c)

Waters

with

adjacent

land

uses

sufficient

to discourage

primary contact

activities.”

35111. Admin.

Code

378.201.

To

obtain

an

exemption,

a

NPDES

permittee

must

submit a Disinfection

Exemption

Request

to

the

TEPA.

35

Ill.

Admin,

Code

378.103.

To

prepare

its request,

the

petmittee

must

conduct

surveys

to

determine

whether

the

affected

waters

currently

support

or

have

the

potential

to

support

primary

contact

activities.

35

111.

Admin.

Code

378.204(a).

To

have

the

potential

for

primary contact

use,

the

segment

of

the

water

body

at

issue

must

have

water

depths

that

would

ordinarily

permit swimming

during

the

months

of

May

through

October. 35111.

Admin.

Code

378(a)(1).

To

have

the

potential

for

primary

contact

activities, there

must

be

suitable

access

to

the

streambed,

and

no

logs,

log

jams,

or

other

debris

rendering

the

water body

hazardous

or

unattractive

to

swimmers.

35 Ill.

Admin.

Code

378(a)(2).

The

surveys

conducted

by

CDM

on

behalf

of

the

City

of

Quincy and

provided

to the

19

---

IEPA are similar

to the

studies required

by

Part 378.

These

surveys

show

that

not only

do

Whipple

Creek and

Curtis

Creek

not presently

support

primary

contact

recreation,

they do

not

have the

potential

to support

primary contact

recreation.

Whipple

Creek

is a small

stream,

difficult

to access,

extremely

shallow,

and

has

no deep

pools. Curtis

Creek,

in the areas

outside

the

industrial

area it

flows through,

has

identical

characteristics.

The

portion

of Curtis

Creek

flowilg through

the

industrial

area

is an unprotected

water

unsuitable

for

primary

contact

activities

because

the adjacent,

industrial

land

use

discourages

primary

contact

activities

and

there

is

no

suitable

access

for primary

contact

activities.

As to the Mississippi

River channel,

the survey

shows

that

it also

is not

used

for

primary

contact

recreation.

This

Mississippi

River

channel, although

having a

depth

sufficient

for

swimming,

is used for

marine

traffic

which

renders

it hazardous

and

unattractive

to swimmers

and which

discourages

primary

contact

activities.

It is

also a no wake

zone,

so

the

ingestion

of

water due

to water skiing

is

not a possibility.

Also,

the

IEPA has

provided no

explanation

for

treating the

Cedar Street

CSO

006 discharge

to

the

Mississippi

River

channel

differently

than

the

Broadway

Street

CSO 005

discharge

located

a

few

blocks

south discharging

to the

Mississippi

River.

(Record,

p.

148).

Thus,

if the IEPA

is relying

on Section

302.209’s

definition

ofrotected

waters

to

define

sensitive

areas,

that

reliance

is misplaced.

And,

even

if these

very different

terms

did have

the

same

meaning,

the

IEPA

erred

in not considering

the

information

supplied

by the

City

of Quincy

which amply

demonstrated

that

the

waters are

not protected

waters

VII.

THE IEPA

MUST

ABIDE BY

THE

1994

POLICY’S

DEFINITION

OF

SENSITIVE

AREA

AND

THE IEPA’S

PREVIOUS

INTERPRETATION

OF

THE

1994

POLICY.

The

IEPA is

not free to

designate

any

CSO

receiving

water as

a sensitive

area.

The

1994

Policy

provides

a nonexclusive

list of

waters

that

are sensitive

areas.

When

a regulation

provides

a list

that is

not exhaustive,

e.g.,

by using

phrases

such

as “including

but

not

limited to,”

the

class

20

---

of

unarticulated

things

is

to

be

interpreted

as

those

that

are

similar

to

the

named

things.

Zekrnan

v.

Direct

Amer. Marketers,

182

III.

2d

359,

369

(1998); East

St.

Louis

v. East

St.

Louis

Fin.

Auth.,

188

Ill.

2d

474,

484

(1999)(doctrine

of

ejusdem

eneris).

Here,

the

IEPA

interprets

the

phrase

sensitive

area

as

used

in

the

1994

Policy

to

include

receiving

waters flowing

though

residential

or

public

use

areas

and

those

that

have

the

potential

for

human

contact.

These

new

classifications

are

not

similar

to the

listed

receiving

waters

in the

1994

Policy.

The

1994

Policy

does

not

mention

residential

areas

or

public

use

areas.

The

1994

Policy’s

only

concern

with

public

use

is

when

the

public

is

engaged

in

primary

contact

recreation.

Thus,

the

IEPA’s

interpretation

of

the

1994

Policy

violates

the

doctrine

of

eiusdem

generis.

Depending

upon

how

the

terms

residential

area

and

public

use

area

are

construed,

the

IEPA’

s

interpretation

of

the

phrase

sensitive

area

might

render

almost

every

steam

in Illinois

in

which

a

CSO discharges

a sensitive

area.

A map

of

Illinois

shows

that

almost every

stream

in

the

state

flows

through what

might

arguably

be

a residential

area

or

public

use

area.

and

the

Board

is

requested

to

take

judicial

notice

of

this

fact.

5

ILCS

100/10-40(c).

And,

if

the

potential

for

human

contact

with

a water

results

in the

water

being

deemed

a

sensitive

area,

every

water

any

CSO

discharges

to

will

be

a sensitive

area,

as

all waters

have

the

potential

for

human

contact.

If the

IEPA’s interpretation

is adopted,

then,

every

water

a

CSO

discharges

to will

be a

1994

Policy

sensitive

area,

and

a water

which

is

truly

a

sensitive

area

(e.g.,

one

with

threatened

or

endangered

species)

will

be

entitled

to

no

greater

priority

under

the

1994

Policy

than

a water

the

IEPA

deems a

sensitive

area

simply

because

it has

the

potential

for

human

contact.

By

designating

all

streams

sensitive

areas,

the

TEPA

eviscerates

the

1994

Policy’s

directive

to

give

priority

to

protecting

truly

sensitive

areas.

The

1994 Policy’s

directive

to

place

priority

on

sensitive areas

is

important.

As

the

1994

Policy

recognizes,

municipalities

have

limited

funds

to

address

CSO

issues.

These

funds

should

be

used

first

to

protect waters

that

are

truly

sensitive

areas.

And,

for

municipalities

with

no

21

---

CSOs

discharging

to waters

that

are truly

sensitive

areas,

the

improper

designation

of

sensitive

areas

wastes

limited

resources.

The

phrase

“waters

with

primary

contact

recreation”

is

not

ambiguous.

Thus,

the

IEPA’s

interpretation

is entitled

to

little, if

any,

weight

in

the

Board’s

determination

of the

meaning

of

the

phrase

sensitive

area.

Central

Illinois

Public

Service

Co

v.

PCB,

165 Ill.

App.

3d

354,

363

(

4

th

Dist.

1988).

The Board

is

required

to

give

the phrase

“waters

with

primary

contact

recreation”

its

plain

meaning.

Piatak

v.

Black

Hawk

College

Dist.,

269

Ill. App.

3d

1032,

1035

(

3

rd

Dist. 1995)(The

initial

source

for

determining

legislative

intent

is the plain

meaning

of the

language

used,

and

where

unambiguous,

the

plain

meaning

of

the

language

controls.);

Shell

Oil

Co.

v.

Pollution

Contorl

Board,

37 111.

App.

3d

264,

273

(Sth

Dist.

1976)(The

rules

of

construction

applicable

to

statutes

apply

to

administrative

regulations.).

Even

if

the 1994

Policy’s

definition

of

sensitive

waters

insofar

as

primary

contact

recreation

is

concerned

were

ambiguous,

the

IEPA

cannot

change

its earlier

interpretation

of the

1994

Policy

absent

a

significant

change

in circumstances.

The

undisputed

facts are

that the

IEPA

never

before

deemed

any

of the

receiving

waters

sensitive

areas,

and

the record

is

devoid

of any

facts

suggesting

that the

receiving

waters

have

changed

since the

earlier

permits

were

issued.

In

Illinois,

administrative

agencies

are

bound

by

their

long-standing

policies

and

customs

of which

affected

parties

have

prior

knowledge

absent

significant

changes

in

circumstances,

Central

Illinois

Public

Service

Co

v.

PCB,

165

Ill.

App.

3d

354,

363

& 366

(

4

th

Dist.

1988)(”CIPS”).

CIPS

concerned

a

permit

appeal.

Unlike

previous

permits

issued

to CIPS,

the

IEPA

included

a

condition

in an

operating

permit

limiting

sulfur

dioxide

emission

to

6.0

lbs

per

million

btu.

.

at

355

&

358.

The

Board

affirmed

the IEPA’s

decision,

and CIPS

appealed.

The

CIPS

Court held

that

the

applicable

rules

and

regulations

did

not

require

the

condition.

at

361.

Noting

that the

applicable

rules

and

regulations

were

ambiguous,

the

CIPS

Court

noted

that

the IEPA’s

long-standing

practice

in interpreting

these

ambiguous

regulations

had been

to

UQ.

include

a

6.0 lbs

per million

btu

condition

in

CIPS’s

permits.

,

at 362.

Noting

22

---

further

that

there

were

no

changed

circumstances

or changes in

the

regulations

that

would

require

inclusion

of

the

6.0

lbs

per

million

btu

condition

in

the

permit,

the

challenged

condition

was

stricken

from

the

permit.

.

at

366.

Here,

if

the

Board

finds

the

phrase

“waters

with

primary

contact

recreation”

ambiguous,

the

Board

should

similarly

bind

the

IEPA

to

its earlier

interpretation

of

the

phrase.

For

these

reasons,

the

IEPA’s

interpretation

of

the

1994

Policy’s

sensitive

areas

definition

inso

far

as

it

concerns

waters

with

primary

contact

recreation

must

be

rejected.

VIII.

THE

UNDISPUTED

FACTS

DEMONSTRATE

THAT

THE

CSOs

DO

NOT

DISCHARGE

TO

WATERS

WITH

PRIMARY

CONTACT

RECREATION.

The

1994

Policy’s

definition

of

sensitive

areas

includes

“waters

with

primary

contact

recreation.”

The

1994

Policy

provides

swimming

as

an

example

of a

primary contact

recreation.

The

Board’s

regulations

make

a clear

distinction

between

primary

contact

activities

and

secondary

contact

activities.

“Primary

Contact”

means any

recreational

or

other

water

use

in

which

there

is

prolonged

and

intimate

contact

with

the

water

involving

considerable

risk

of

ingesting

water

in

quantities

sufficient

to pose

a significant

health

risk,

such

as swimming

and

water

skiing.”

35

Ill.

Admin.

Code

301.355.

“Secondary

Contact”

means

any

recreational

or

other

water

use

in

which

contact

with

the

water

is

either

incidental

or

accidental

and

in

which

the

probability

of

ingesting

appreciable

quantities

of water

is minimal,

such

as

fishing,

commercial

and

recreational

boating

and

ny

limited

contact

incident

to

shoreline

activity.”

35111.

Admin.

Code.

301.308.

There

is no

evidence

in

the record

suggesting

that

Curtis

Creek,

Whipple

Creek,

or

the

Mississippi

River

channel

separating

Quinsippi

Island

from

the Illinois

mainland

are used

for

primary contact

recreation.

The

IEPA

has

never

suggested

that

it

has

evidence

that

these

waters

are

used

for

primary

contact

recreation

and

that

this

was

the

basis

for

the

IEPA’s

decision

to

designate the

waters

as

sensitive

areas.

The

surveys

submitted

by

the

City

of

Quincy

to

the

IEPA

demonstrate

that

the

waters

are

not

used

for

primary

contact

recreation.

23

---

Accordingly,

as

Curtis

Creek,

the

Mississippi

River

channel,

and

Whipple

Creek

are

not

used

for primary

contact

recreation,

those

waters

are

not

1994

Policy

sensitive

areas,

and

the

IEPA’s

sensitive

area

designations

for these

waters

were

improper.

IX.

PROPER

PROCESS

FOR

IDENTIFYING

SENSITIVE

AREAS

The

1994

Policy states

that

a

sensitive

area

classification

is to

be

determined

by

the

NPDES

authority

in coordination

with

state

and

federal

agencies, as appropriate.

(1994

Policy,

Section

II.C.3).

These

determination

must

be based

on

a correct

interpretation

of

the

meaning

of

sensitive

area

and

be

supported

by

facts.

Thus,

it

would

be

inappropriate

for

the

IEPA

to declare

that

a

water

was

a

sensitive

area

because

it

was

a water

with

threatened

or

endangered species

or

their

habitat

if

the

JEPA

had

no facts

to support

its

declaration;

however,

if

the

U.S.

Fish

and

Wildlife

Service provided

factual

support

for

such

a

determination

to

the

permittee

or

the

IEPA,

the

IEPA’s decision

would

be

supportable.

(Record,

p.

7).

Sometimes,

it is

not known

whether

a

water

is

a

sensitive

area

(e.g.,

Does

the

water

contained

endangered species?

Is

the

water

used

for

primary

contact

recreation?),

and

the

permittee

must

gather facts

relevant

to the

determination.

The

Guidelines

note:

(1)

“The

initial

identification

of

sensitive

areas

should

be

made

by

the

permittee

in

consultation

with

the

NPDES

permitting

authority

and

may

require

coordination

with

local,

State,

and

Federal

agencies

involved

in

the

protection

of such

areas.”

(Record,

p.

7);

(2)

“As

part

of

developing

the

LTCP,

municipalities

should

be

required

to

identify all

sensitive

water

bodies

and

the

CSO

outfalls that

discharge

to

them.”

(Record,

p.

10);

and

(3)

“Sensitive

areas

should

be

identified

as

part

of

the

CSS

characterization

as

soon

as

the

locations

of

all CSO

outfalls

are

known.”

(Record,

p.

7).

In

the

present

case,

as part

of

its

efforts

toward

developing

its

long

term

control

plan,

the

24

---

City

of

Quincy

prepared

a

CSO

Assessment

and

provided

it to

the

IEPA.

(Record,

241).

The

JEPA

reviewed

the

CSO

Assessment,

and,

in its

June

7, 2007,

letter,

offered

comments

“for

the

City’s

consideration

during

the

development

of

their

CSO

long-term

control

plan

(LTCP).”

(Record,

p.

241).

One

of the

IEPA’s

comments

was

that

all

six CSO

discharges

should

be

characterized

as

having

“primary

contact”

and “aquatic

life”

designated

uses.”

(Record,

p.

241).

Another

IEPA

comment

was

that

Whipple

Creek,

Cedar

Street,

and

South

Side

CSOs

discharge

either

into

or

upstream

from

parks

or public

use

areas,

and

the

City

should

consider

relocating

or

eliminating

these

discharge

locations.

(Record,

p.

241).

The

IEPA’s

June

7,

2007,

letter

did

not

state

that

all

of

the

CSOs

discharged

into

sensitive

areas,

and

the

City

of Quincy

did

not

interpret

the

JEPA’s

comments

to

mean

that

the

IEPA

had

designated

all of

its CSOs

as discharging

to

sensitive

areas.

(Record,

p.

269).

And,

in

the

issued

pennit,

even

though

the letter

stated

that

all

six

CSOs

discharges

should

be

characterized

as

having

primary

contact,

the IEPA

designated

only

three

of the

six

CSOs

as

discharging

to

sensitive

areas.

Thus,

the

IEPA’s

comments

in its

June

7, 2007,

were

not

statements

that the

JEPA

had

made

its

sensitive

area

determinations.

No

prior

permits

issued

to

the

City

of Quincy

identified

any

CSOs

as

discharging

into

sensitive

areas.

The draft

permit

issued

in April,

2007,

similarly contained

no

sensitive

area

designations.

The record

does

not indicate

that

these

water

bodies

or

their

uses

changed

in

any

manner

since

earlier

NPDES

permits

were

issued.

The

City

of

Quincy

and the

JEPA

were

in

agreement

that

none

of the

CSOs

discharged

into

sensitive

areas

as evidenced

by

the draft

NPDES

permit

issued

in

April,

2007,

stating

there

were

no

sensitive

areas

identified.

In July,

2007,

the

IEPA

apparently started

implementing

its

new

sensitive

area

policy

(or

its

revised

interpretation

of

the

1994

Policy)

and

issued

the

revised

draft

permit

designating

three

sensitive

areas.

In

response,

the City

of

Quincy

directed

that

primary

contact

recreation

surveys

of

the

waters

at

issue

be conducted

and

submitted

to

the

IEPA.

The

IEPA

ignored

the

surveys,

thereby

leaving

the City

of

Quincy

with

a permit

condition

requiring

it, within

an

unrealistically

25

---

short,

three-month

period,

to

submit

a plan

to

relocate,

control,

or

treat

the discharges

or

explain

why

it could

not

do so

in the manner

required

by

the

1994

Control

Policy.

Although

the

1 994

Policy

states

that the

JEPA

has the

authority

to designate

sensitive

areas,

this

does

not

give

the

IEPA

unfettered

power

to

name

any

water

a sensitive

area.

The

IEPA’s

designation

must

comport

with

the

1994

Policy’s

definition

of sensitive

area and

be

based

on

facts.

In

the

present

case,

the IEPA’s

decision

did not

comport

with

the 1994

Policy’s

definition

of

sensitive

area

and

was

not

based

on

the

facts.

In

order

to return

to

compliance

with

the

1994

Policy

and

allow

the

JEPA to

make

proper

sensitive

area

determinations,

the

Board

should

reverse

the

IEPA’s

sensitive

area

determinations.

The

Board

should

clarify

that

a sensitive

area,

insofar

as is

relevant

here,

means

a

water

with

primary

contact

recreation,

The City

of

Quincy,

as

part

of the

development

of