NOTICE OF FILING
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Application of the MOA
Impermissible Rulemaking
CERTIFICATE OF SERVICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CITY OF JOLIET,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY

Respondent.

)

PCB No. 09-25

(Permit Appeal-Water)

NOTICE OF FILING

TO:

Roy M. Harsch

Yesenia Villasenor-Rodreguez

Drinker Biddle

Reath, LLP

191 North Wacker Drive

Suite

3700

Chicago, Illinois 60606

Bradley P. Halloran

Hearing

Officer

Illinois Pollution Control Board

JamesR. Thompson Center, Suite 11-500

00 West Randolph Street

Chicago, Illinois

60601

PLEASE TAKE NOTICE that on February 27,2009 I filed with the Clerk of the Illinois

Pollution Control Board, the Respondent's Reply to Petitioner's Post Hearing

Brief and Certificate

of Service, a copy of which is attached and served upon you.

DATED: February

27,2008

Respectfully subinitted,

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY

By:~2,~

Gerald T. Karr

Senior Assistant Attorney General

Environmental Bureau

69 West Washington Street

Suite

1800

Chicago, Illinois 60602

(312) 814-3369

THIS FILING IS SUBMITTED ON RECYCLED PAPER

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CITY OF JOLIET,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY

Respondent.

)

PCB No. 09-25

(Permit Appeal-Water)

RESPONDENT ILLINOIS ENVIRONMENTAL PROTECTION AGENCY'S

REPLY TO PETITIONER'S POST -HEARING BRIEF

NOW COMES Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, by

and through its Attorney and for its Reply to Petitioner's Post-Hearing Brief, states as follows:

Introduction

Petitioner, in its brief spends an inordinate amount oftime talking about building codes, the

virtues

of its land application program and the failure of the Respondent to present witnesses at

hearing. These arguments have nothing to do with the standard

of review for a permit appeal hearing.

As set out in the Respondent's opening brief, the burden

of proof rests with the Petitioner and

Petitioner has failed in meeting its burden. The Illinois Environmental Protection Act (the

"Act"),

provides in Section 39(a) that the Agency shall issue a permit upon proof of the applicant that the

permitted activity

or facility will not cause a violation of the Act or regulations. 415 ILCS

5/39( a)(2006). It is this standard that must be met, rather than whether or not the activity will "cause

harm or undue risk to human health or the environment." (Petitioner'S Brief, Pg. 2).

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Building

Codes

Petitioner goes to great lengths to stress that its building codes require the removal of topsoil

before residential construction takes place. (Petitioner's Brief, pg. 3). Further,

Petitioner argues the

issue before the Board is whether the record supports Petitioner's assertion that house will be built as

required

by the local building code. (Petitioner's Brief, pg. 23). Again, this argument misses the

point

of what standard is required to be met for issuance of a permit. Compliance with building

codes is not at issue before the Board. The denial letter issued

by the Agency framed the issue and it

relates to the increase

of concentration of radium in the soil above background, not the removal of

topsoil. Additionally, Petitioner never shows where the removed topsoil will end up. The soils

could be consolidated thus increasing the concentrations to even greater levels.

Application of the MOA

The city of Joliet must treat its drinking water to remove radium. See; 35 Ill. Adm. Code

302.307. Although the drinking water maximum contaminant level for radium is a long-existing

standard, for a variety

of reasons it was not implemented until the early 2000s. See Generally; PCB

R04-21,

the Matter of: Revisions to Radium Water Quality Standards: Proposed New 35 Ill. Adm.

Code 302.307 and Amendments to 35 Ill. Adm. Code 302.207 and 302.525. After treatment

ofthe

drinking water the radium containing wastes are sent directly to the POTW and are concentrated in

its bio-solids. However,

when the City of Joliet's public water supply started removing radium from

the drinking water, and sending it directly to the

POTW, the radium levels in the bio-solids and the

appropriate levels at which radium could

be permitted in the soils became issues for the Petitioner

and the Illinois EPA. The 2006 permit is the first permit issued to Petitioner in which radium limits

apply.

Petitioner implies that Illinois EPA engaged in untoward behavior by waiting 24 years to

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apply the limitation contained in the Illinois EP AlIllinois Emergency Management Agency MOA.

Petitioner is aware that the radium limitations became an issue in its land application permit after

Petitioner began removing radium from its drinking water.

fact one of Petitioner's own witnesses,

Mr. Dennis Duffield, a former 26 year employee for the Petitioner spends a great deal

of his pre-filed

testimony explaining

U.S. EPA's regulations and the setting of radium limits in drinking water and

the necessity

of Petitioner to begin removing radium starting in the early 2000's. While the MOA

has been applicable to the Petitioner's activities since 1984, the Illinois EPA's initial understanding

was that the regulation

of radium was outside the Agency's jurisdiction. U.S. EPA's final

determination on drinking water standards on December

7, 2000 caused the Illinois EPA to revisit

this issue beginning immediately thereafter. As a result

of reassessing the issue, the Illinois EPA

included radium limits in the Petitioner's 2006 permit.

Model ProgramlNo Violations

Petitioner argues it has a model bio-solids program which has had no complaints or

violations. (Petitioner's Brief, pgs.

6, 7-9, 16-17). The Illinois EPA does not disagree. However,

Petitioner's bio-solids application permit must now address a limit for radium. The

2006 permit is

the first permit that contains radium limits. Whether Petitioner runs a model program or not does not

allow the Illinois

EPA to ignore its duty under the Act and deny a permit when the applicant has

failed in its burden.

No Witnesses/lEPA and lEMA Disagree

Petitioner on at least four occasions in its brief (Petitioner's Brief, pgs. 5, 13, 14 and 26),

argues that the Illinois

EPA offered no witnesses at the hearing.

is unclear why this is relevant to

Petitioner meeting its burden, other than trying to cast the Illinois

EPA in an unfavorable light.

Decisions on strategy and defense

of a permit appeal are not a basis for reversing a decision of the

-3 -

Illinois EPA when it is fulfilling its duties under the Act. The record filed in this case, which

includes the denial letter, frames the issues

on appeal and provides the basis for the decision reached

by the Illinois EPA. The basis for the denial of the pennit modification is contained in the denial

letter. (R.1-2)

I .

This letter references the MOA between Illinois EPA and IEMA, no disagreement is

evident.

Petitioner's argument that the Illinois EPA pennit writer agrees with the Petitioner's

conclusions (Petitioner's Brief, pg. 11) is irrelevant. Additionally, Illinois

EPA and IEMA agreed to

the interim

pennit modification revising the limit for increases in concentration ofradium in the soil.

Illinois

EPA and IEMA are not at odds, and even if they were it is not a basis for granting or denying

pennit. Further, Petitioner argues that IEMA does not refute Petitioner's claims (petitioner's Brief,

pg. 21),

but yet the record is clear that IEMA disagrees with Petitioner's position. See R. 33-

34 and 328-335.

its August 13,2007, letter IEMA explains the deficiencies it found in Petitioners

submittal. (R-33-34).

No Alternatives

Petitioner also argues that if it does not get the modification to its pennit in question,

Petitioner will have to discontinue its bio-solids program and dispose

of its sludge in a landfill at

significant cost.

As set out in Illinois EPA's opening brief, Petitioner's own witness admits there are

other application alternatives. Additionally, increased financial burden is

not a basis for granting a

pennit. Petitioner has failed to show the

pennit modification it seeks will not lead to a violation of

the Act.

Impermissible Rulemaking

Petitioner argues that reliance upon the 1984 MOA by Illinois EPA would constitute an

improper rulemaking. Illinois

EPA would argue in response that Petitioner has waived this

1 All references designated (R- ) refer to the record filed in this matter on December 11, 2008.

-4 -

Electronic Filing - Received, Clerk's Office, February 27, 2009

argument. The Board in its procedural rules provides in part in Section 105.21 O( c), Petition Content

Requirements:

In addition to the requirements

of35 Ill. Adm. Code 101. Supart C, the petition must

include:

35 Ill.Adm. Code Section 105.21

O( c). Petitioner did not specify this as grounds for the appeal ofthe

Illinois EPA decision to deny its permit modification. As such Petitioner has waived this argument

and is foreclosed from asserting now.

If the Board finds Petitioner did not waive its argument regarding an improper rulemaking,

Illinois

EPA would make the following argument. The MOA between the Illinois EPA and IEMA is

not an impermissible rulemaking. Section 4

ofthe Illinois Environmental Protection Act gives the

Director

ofthe Illinois EPA the ability to "by agreement secure such services as he or she may deem

necessary from any other department, agency,

or unit of the State Government . . . as may be

required." 415 ILCS 5/4 (2006). IEMA' s department of nuclear safety has made determinations on

the health effects and bioaccumulative properties

of radium. "Any power ... which may be

exercised by a public agency

of this State may be exercised ... and enjoyed jointly with any other

public agency

of this State" pursuant to Section 3 ofthe Illinois Intergovernmental Cooperation Act.

5 ILCS 220/3

(2006). Governmental agencies may enter into memorandum of agreement to

memorialize a joint exercise

of power. The Illinois EPA and IEMA did so in this case to combine

areas of expertise on radium contamination.

Petitioner argues that the

MOA between Illinois EPA and IEMA cannot bestow upon Illinois

EPA any enforceable authority to set limits in permits issued

by the Illinois EPA. (petitioner's Brief,

pg. 26). Illinois

EPA does not derive its authority from the MOA but from the Act, specifically in

-5 -

relation to pennits from Section 39. 415 ILCS 5/39 (2006). The denial letter cites to Section 12 and

of the Act, 415 ILCS 5112 and 39 (2006), as the basis for the denial. Section 12 is contained in

Title III

of the Act which is captioned Water Pollution.

adopting the Illinois Environmental

Protection Act the Illinois General Assembly, in Section

11 of the Act, made the following

legislative declaration:

(a)

The General Assembly finds:

(1)

that pollution

ofthe waters ofthis State constitute a menace to public health

and welfare, creates public nuisances, is hannful to wildlife, fish and aquatic

life, impairs domestic, agricultural, industrial, recreational, and other

legitimate beneficial uses

of water, depresses property values and offends the

senses.

415 ILCS

5111(a)(I)(2006). Section 12 of the Act provides the prohibition against causing or

threatening to cause water pollution through certain activities or means.

is this Section coupled

with the Agency's duty contained in Section 39

of the Act when issuing pennits that gives the

Illinois EPA the authority to act in this case. The Petitioner's proposal to increase the allowable

concentration

of radium in the soil above background by 1000% are the types of activities that the

Illinois

EPA must consider when fulfilling its duty of ensuring that pennit applicants have proven

their activities will not lead to a violation

of the Act. The Illinois EPA fully considered Petitioner's

pennit modification application and fulfilled its duty under the Act because the Petitioner failed to

meet its burden.

The City

of Joliet must prove that its proposed activity will not cause a violation ofthe Act.

The Petitioner's arguments that (i) the activity is safe; (ii) other alternatives are more costly; (iii)

building codes are being complied with; and (iv) the Illinois EPA pennit writer disagrees with

lEMA

are all diversions. The Petitioner failed in this burden and the Record filed in this matter supports

-6 -

the decision of the Illinois EPA to deny Petitioner's permit application. Petitioner is seeking to

increase the concentration

of radium in soil above the background level to a level the Illinois EPA

found will not allow it to issue a permit and the record in this case supports such a conclusion.

WHEREFORE, Respondent, Illinois Environmental Protection Agency, respectfully request

the Illinois Pollution Control Board enter an order affirming the denial

of Petitioner's July 30,2008

permit application.

-7 -

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY

BY:~~.d~

Gerald T. Karr

Senior Assistant Attorney General

Environmental Bureau

69 West Washington

Street

Suite 1800

Chicago, Illinois 60602

(312) 814-3369

CERTIFICATE OF SERVICE

GERALD T. KARR, an Assistant Attorney General in this case, do certify that on this 27th

day

of February, 2009, I caused to be personally served the foregoing Notice of Filing and

Respondent's Reply to Petitioner's Post Hearing

Brief upon the individuals listed on the attached

Notice of Filing.

~~~,-t~

GERALD T. KARR