BEFORE

THE

ILL1NOIS

POLLUTION

CONTROL

BOARD

NOTICE

OF

FILING

S

IUtioI

7

f’v0

15

Appeal)

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

TAXE

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.

Prillaman

Joel

A.

Benoit

MOHAN,

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

1

By

Joel

A.

Benoit

---

BEFORE

THE

ILLINOIS

POLLUTION

CONTROL

BOARD

CITY

OF

QUINCY,

an

Illinois

municipal

)

corporation,

)

Petitioner,

)

?2fln.

p

0111

v.

)

PCB

No.

08-86

;

)

(NPDES

Permii

Appa1)

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

101.5

16,

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

systcm

includes

six

combined sewer

overflows

(CSOs).

The

Illinois

Environmental

Protection

Agency

(IEPA)

issued

the

City

of

Quincy

a

NPDES

permit

effective April

1,

2008,

which,

in

part,

governs

discharges

from

these

CSOs.

Special

Condition

14(7)

of

the

NPDES pennit

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.”

IcL

Summary

judgment

“is

a

drastic

means

of disposing

of

litigation,”

and

therefore

shoLLid

be

granted

only

when the movant’s

right

to the

relief “is clear

and

free

from doubt.”

Id, citing

Purtill

v.

Hess, 111

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

(2dDist.

1994).

Jersey

Sanitation

Con.

vs.

IEPA,

PCB

No.

00-82,

p.

5

(June 21,

2001)(Permit

Appeal-Land).

III.

BURDEN

OF PROOF

IN PERMIT

APPEAL

The Illinois

Environmental

Protection

Act

• . states

that

when granting

permits, the

IEPA “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.”

Brownin-Feffis,

179 Iii. App.

3d at

603,

534 N.E.2d

at 620.

IEPA

v.

Jersey Sanitation

Corp.,

336 Ill.

App.

3d

582, 593

(4t1

Dist. 2003);

see also

Noveon,

Inc.

v.

IEPA, 2004

Ill.

ENV

LEXIS 511

at

*15

(PCB

No. 91-17)

(September

16, 2004).

Once

a

perrnittee

establishes

a prima

facie

case

that a permit

condition

is umecessary,

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 permittee.

2

---

IV.

Ui’

DISPUTED

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

Receiving

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 &

313).’

During

an

August,

2007,

survey,

the

wetted

stream

width

of

Curtis

Creek

ranged

from 7

to

60 feet,

with

an

average

width of

3

1.5

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

upper

reaches

was

rated

difficult

for

access

to

the

creek,

and

moderate

to steep

fbr

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,

&

329-33

1.)

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

i4

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

termination,

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 barrier

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

permits, 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

IEPA,

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

woLild

place

special

emphasis

on

CSO

controls

for

oLttfalls

002,

006,

and

007

when

developing

its

long-term

control

plan.

(Record,

p.

268).

On

July

31,

2007,

the

JEPA

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

permit,

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

IEPA

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 information

becomes

available

that

causes

the

IEPA

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

Permittee

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

pennit.

(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

JEPA

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

Perrriittee

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.

300-301).

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

Qtuncy’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

JEPA

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

TEPA

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

from

the

City

of

Quincy

regarding

the

IEPA’s

sensitive

area

detenninations)

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

tue

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

pennit

contains

the

Section

14(7)

here

appealed.

(Record,

p.

380).

10

---

V.

THE

1994

CSO

CONTROL

POLICY

The

Clean

Water

Act

requires

all

NPDES

permits

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

IA).

The

1994

Policy allows

a phased

approach

to

implementation

of

CSO

controls

considering

a

community’s

financial

capability.

(1994 Policy,

Section

I.A).

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

II.C).

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

permittee’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

may be

phased

based

on

the

relative

importance

of

adverse

impacts

upon

water

quality

standards

and designated

uses,

priority

projects

identified

in the

long-

term

plan,

and

on

a pennittee’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).

NTDES

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

ILC).

In the present

case, the

NPDES

permit

requires

the

City

of

Quincy

to

submit

its

long-tenn

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

pennit

for

implementation.

(1994

Policy,

Section

IV.B

.2.).

VI.

THE

IEPA’S

DECISION

IS

EITHER

BASED

ON AN

IMPROPERLY

PROMULGATED

RULE

OR

AN

IMPROPER

INTERPRETATION

OF

THE

PHRASE

SENSITIVE

AREA.

The

stated

basis

for

the

IEPA

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

JEPA

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

IEPA

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

pemiit,

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

rule’s

adoption,

which

was

not

done;

accordingly,

the

rule

is

invalid.

Sen

Park

Nursing

Center

v.

Miller,

104

Ill.

2d

169,

181

13

---

(1984);

Illinois

Ayers

Oil

Company

v.

IEPA,

2004

Ill. ENV

LEXIS

195 at

*3841

(PCB

No.

03-

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.

Id. at

*5

Platolene

appealed

the

IEPA’s

decision

not

to

reimburse

it for

replacing

concrete,

an

expense

the

guidance

manual

arguably

allowed.

Jh

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

rule:

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

*78.

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.

i.

at

*6

&

*89.

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

informal

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.

35

Iii.

Admin.

Code.

301.308

(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

house

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

Iii.

Admin.

Code

30

1.355.

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

fiom

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

h

primary

contact recreation”

(1994

Policy,

Section

II.C)(emphasis

added);

.p..t

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

culTent

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

3 02.209(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

3 02.209.

(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

3 02.209(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 frequented

by

the

public

on

a routine

basis

as

detenined

by

the

Agency

at

35

Ill.

Adm.

Code

309

Subpart

A,

are

exempt

from

this standard.

35

Ill.

Admin.

Code

302.209(b).

Nothing

in

the

record

suggests

that

the

IEPA

considered

the

Section

302.209(b)

exemption.

Instead,

it appears

that

the

IEPA

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

year-round

basis.

35111.

Admin.

Code

378.101.

Under

Part

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

111.

Admin.

Code

378.10

1(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

poois

during

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.”

35

Iii.

Admin.

Code

378.201.

To

obtain

an

exemption,

a

NPDES

permittee

must

submit

a Disinfection

Exemption

Request

to the

IEPA.

35111.

Admin.

Code

378.103.

To prepare

its request,

the

permittee

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)(l).

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.

35111.

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

flowirig 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

JEPA 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

ejusdem

generis.

Depending

upon

how

the

tens

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

IEPA 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

Iii.

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

Iii. 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

pennit

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.

Içj.

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

include

a

6.0

lbs

per million

btu

condition

in

CIPS’s

permits.

4.

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

insofar

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

any

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

detennination

must

be based

on a conect

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 IEPA

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

PDES

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

JEPA’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

IEPA’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

permit,

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 IEPA

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

IEPA

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