FILED 2015 IL App (4th) 140644 July 22, 2015 Carla Bender NO. 4-14-0644 th 4 District Appellate Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
NATURAL RESOURCES DEFENSE COUNCIL, ) Direct Review of an Order of PRAIRIE RIVERS NETWORK, and SIERRA CLUB, ) the Illinois Pollution Control Petitioners, ) Board v. ) THE POLLUTION CONTROL BOARD, a State Agency; ) No. 13-017 THE ENVIRONMENTAL PROTECTION AGENCY, a ) State Agency; and DYNEGY MIDWEST ) GENERATION, INC., a Corporation, ) Respondents. )
JUSTICE TURNER delivered the judgment of the court, with opinion. Presiding Justice Pope and Justice Knecht concurred in the judgment and opinion.
OPINION
¶1 In September 2012, the Environmental Protection Agency (IEPA) issued a
national pollution discharge elimination system (NPDES) permit for discharge of water pollution
to respondent Dynegy Midwest Generation, Inc. (Dynegy). In October 2012, petitioners, Natural
Resources Defense Council, Prairie Rivers Network, and Sierra Club, filed a petition for review
before the Pollution Control Board (Board). In December 2013, petitioners moved for summary
judgment. In February 2014, Dynegy and IEPA filed cross-motions for summary judgment. In
June 2014, the Board granted petitioners' motion in part, remanding the permit to IEPA with
instructions that it be amended to require monthly rather than quarterly monitoring of mercury
discharges, but denied the remainder of the motion and granted the cross-motions for summary
judgment. ¶2 On appeal, petitioners argue the Board (1) erred in holding the IEPA was not
required to establish a case-by-case technology-based effluent limitation (TBEL) for discharges
associated with Dynegy's facility and (2) failed to enforce IEPA's regulation requiring a response
to citizens' comments. We affirm.
¶3 I. BACKGROUND
¶4 Dynegy operates the Havana Power Station, "an oil and coal-fired, six-unit steam-
electric generating facility" located in Mason County. The Havana facility is located on the east
bank of the Illinois River, approximately two miles south of Havana.
¶5 In October 2006, Dynegy filed an application for renewal of its NPDES permit
(No. IL0001571) for the Havana facility. The permit application disclosed that Dynegy expected
to construct "an activated carbon mercury sorbent injection" (ACI) system. The ACI system is a
form of "air pollution control technology that controls mercury emissions into the air." The
system cleans a plant's flue gas emissions through the "injection of activated carbon into the flue
gas," which absorbs mercury and is later captured by a "particulate removal system." Effluent
Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source
Category, 78 Fed. Reg. 34,432, 34,450 (June 7, 2013) (to be codified at 40 C.F.R. pt. 423)
(proposed ELG). Dynegy estimated that after installation of the ACI equipment, the facility
would discharge up to 260 tons of fly ash and sorbent residue to the facility's ash pond on a daily
basis. Dynegy estimated that up to 2.6 tons of the combined material sent to the ash pond would
be mercury-bearing sorbent residue.
¶6 The IEPA tentatively found the proposed activities described in the permit
application would "result in the attainment of water quality standards *** [and] will benefit the
community at large by allowing for the continued operation of the power plant and reduction of
-2- mercury and other pollutants in the atmosphere." The IEPA found "[m]ercury that has been
removed from air emissions is expected to stay in the sorbent," and the sorbent will then be
stored in an ash pond. The IEPA also stated as follows:
"Between zero and 0.6 pounds of mercury per day is predicted to
enter the pond. This is mercury that otherwise would have been
deposited in the Illinois River or other water bodies by air
deposition. Whatever low levels that are discharged from the ash
pond represent a decrease in loading to the environment."
¶7 In April 2011, the IEPA issued a draft NPDES permit and sent it to both Dynegy
and the United States Environmental Protection Agency (USEPA) for comment. In May 2011,
the IEPA issued the draft permit to the public, seeking comments from citizens and interested
groups.
¶8 In June 2011, Prairie Rivers Network and Sierra Club offered written comments
on the draft permit and requested a public hearing. A public hearing was conducted in
November 2011. In December 2011, petitioners jointly filed comments with IEPA concerning
the draft NPDES permit, arguing, inter alia, the IEPA failed to use its best professional judgment
to determine the best available technology to control the discharge of mercury or to require
Dynegy to submit the information necessary to support such a determination.
¶9 The USEPA also responded to IEPA's invitation to comment. USEPA's response
letter stated it had reviewed the draft permit and would not object to the issuance of the permit as
drafted. The USEPA did, however, recommend five changes, one of which dealt with mercury.
The USEPA recommended the IEPA "should accelerate the collection of the mercury data from
quarterly to monthly."
-3- ¶ 10 In September 2012, the IEPA issued the NPDES renewal permit for the Havana
facility. With respect to mercury, the permit retained the quarterly monitoring proposed in the
draft but, instead of requiring only 12 samples, required monitoring "throughout the life of the
permit." IEPA also issued a NPDES responsiveness summary, addressing comments it had
received from the public.
¶ 11 In October 2012, petitioners filed a petition with the Board for review of IEPA's
decision to issue the NPDES permit. Petitioners claimed the Clean Water Act (33 U.S.C.
§§ 1251 to 1387 (2012)) required that NPDES permits include a TBEL based on the best
available technology for toxic pollutants. Petitioners argued the IEPA failed to comply with
these requirements and that no TBEL was included in the permit for mercury or any other toxic
pollutants. Petitioners also argued the IEPA's responsiveness summary failed to respond to
significant comments.
¶ 12 In December 2013, petitioners filed a motion for summary judgment. In February
2014, Dynegy and the IEPA filed cross-motions for summary judgment.
¶ 13 In June 2014, the Board granted petitioners' motion in part, ordering a change to
the permit's schedule for mercury monitoring. The Board rejected petitioners' arguments
regarding (1) the need for a mercury TBEL and (2) the comprehensiveness of the responsiveness
summary.
¶ 14 The Board recognized that operation of the ACI system will result in an
"increased loading of mercury to the ash pond." The Board then stated the main question
centered on whether the increased loading would be discharged to the Illinois River. The Board
noted two studies that supported "IEPA's conclusion that it is unlikely that there will be an
increased loading of mercury on the receiving stream." However, the Board "believe[d] it is
-4- imperative that actual monitoring data be used to evaluate the impact of a new waste stream on
the receiving unit's effluent quality and the subsequent impact on the receiving stream."
"In this regard, the Board agrees that IEPA's approach to
require monitoring effluent for mercury *** in order to develop
data regarding the potential discharge along with the ability to
reopen the permit if monitoring indicates water quality concerns.
*** Further, the Board finds that the IEPA's approach is consistent
with the [Illinois Environmental Protection] Act and Board's
regulations. This approach is the only way to have specific data on
the effluent mercury concentrations. However, given the potential
bioaccumulative impact of mercury on Illinois River, a stream
already impaired for mercury, the Board finds that quarterly
monitoring would take a longer time period to determine if a
permit limit is necessary to insure that the water quality or effluent
standards will not be violated. As USEPA recommended, the
Board finds that monthly monitoring is more appropriate for
characterizing the effluent mercury concentration and evaluating
the need for a permit limit."
Thus, the Board ordered the IEPA to amend the permit to provide for monthly monitoring of
mercury.
¶ 15 The Board then addressed petitioners' argument that the IEPA was required by the
Clean Water Act to develop site-specific TBELs for mercury for the Havana facility based on a
best-professional-judgment analysis. The Board reviewed the USEPA effluent limitation
-5- guidelines from 1982 (1982 ELG) and found "the plain language of the USEPA definition of
'low level wastes' includes the waste stream from Havana Station's scrubbers and ACI." Thus,
the Board found the IEPA was not required to adopt TBELs on a case-by-case basis for the
Havana facility.
¶ 16 As to the IEPA's responsiveness summary, the Board declined petitioners' request
to review the completeness of the IEPA's response. The Board stated as follows:
"IEPA adopted its own rules on the content requirements for a
Responsiveness Summary. How IEPA implements those rules is
IEPA's discretion. Obviously the Responsiveness Summary is a
part of the permit appeal record, and as such, the Board would
expect that IEPA would provide as complete a document as
possible. However, the Board declines to review the
Responsiveness Summary for consistency with IEPA's rules."
Following the Board's decision, petitioners timely sought review in this court. See 415 ILCS
5/41(a) (West 2012).
¶ 17 II. ANALYSIS
¶ 18 A. Standard of Review
¶ 19 In the case sub judice, the issues raised present questions of law involving the
Board's interpretation of federal and state regulations. When questions of law are involved, our
review is de novo. County of Kankakee v. Pollution Control Board, 396 Ill. App. 3d 1000, 1006,
955 N.E.2d 1, 8 (2009). "However, despite not being bound by an administrative agency's
interpretation of the law, a reviewing court should afford substantial deference to the agency's
determination of a statute that the agency administers and enforces." FedEx Ground Package
-6- System, Inc. v. Pollution Control Board, 382 Ill. App. 3d 1013, 1015, 889 N.E.2d 697, 699
(2008).
¶ 20 B. The IEPA's NPDES Permit
¶ 21 The General Assembly established the IEPA and the independent Board to
implement the Environmental Protection Act (415 ILCS 5/1 to 58.17 (West 2012)). Town &
Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 107, 866 N.E.2d 227,
230 (2007). The Environmental Protection Act prohibits the discharge of any contaminant into
the waters of Illinois without an NPDES permit or in violation of the terms or conditions of the
permit. 415 ILCS 5/12(f) (West 2012). The Clean Water Act also prohibits the discharge of any
pollutant unless the discharge has been authorized by permit. 33 U.S.C. §§ 1311(a), 1342(a)
(2012). In Illinois, the IEPA is the permitting authority responsible for issuing NPDES permits.
¶ 22 The administrator of the USEPA is obligated to establish appropriate "effluent
limitations" for each pollutant. 33 U.S.C. § 1311(b) (2012). For toxic pollutants such as
mercury, the administrator is required to establish an effluent limitation on an industry-specific
basis, applying "the best available technology economically achievable" for that particular
industry. 33 U.S.C. § 1311(b)(2)(A), (b)(2)(C) (2012). If the administrator has established such
a limitation, it must be used for all permits regardless of whether the permit is issued by the
federal government or by a state agency pursuant to a delegation of authority by the USEPA. 33
U.S.C. § 1311(e) (2012); 33 U.S.C. § 1342(a)(1)(A), (b)(1)(A) (2012).
¶ 23 If the administrator has not yet taken all of the "implementing actions" necessary
to establish a uniform effluent limitation, then a permit may be issued upon "such conditions as
the Administrator determines are necessary to carry out the provisions of" the Clean Water Act.
33 U.S.C. § 1342(a)(1)(B) (2012). To accomplish that goal, the USEPA regulations instruct
-7- permit issuers to establish "[t]echnology-based treatment requirements" "[o]n a case-by-case
basis under section 402(a)(1) of the [Clean Water] Act [(33 U.S.C. § 1342(a)(1) (2012))], to the
extent that EPA-promulgated effluent limitations are inapplicable." 40 C.F.R. § 125.3(c)(2)
(2014). USEPA regulations describe this case-by-case process as incorporating a "Best
Professional Judgment" standard. 40 C.F.R. § 125.3(a)(2)(i)(B) (2014).
"In situations where the EPA has not yet promulgated any
ELGs for the point source category or subcategory, NPDES
permits must incorporate 'such conditions as the Administrator
determines are necessary to carry out the provisions of the [Clean
Water] Act.' 33 U.S.C. § 1342(a)(1). [Citation.] In practice, this
means that the EPA must determine on a case-by-case basis what
effluent limitations represent the [best available technology] level,
using its 'best professional judgment.' 40 C.F.R. § 125.3(c)-(d).
Individual judgments thus take the place of uniform national
guidelines, but the technology-based standard remains the same."
Texas Oil & Gas Ass'n v. United States Environmental Protection
Agency, 161 F.3d 923, 928-29 (5th Cir. 1998).
Permit writers may also use a combination of the two methods. 40 C.F.R. § 125.3(c)(3) (2014).
Thus, "[w]here promulgated effluent limitations guidelines only apply to certain aspects of the
discharger's operation, or to certain pollutants, other aspects or activities are subject to regulation
on a case-by-case basis in order to carry out the provisions of the [Clean Water] Act." 40 C.F.R.
§ 125.3(c)(3) (2014).
¶ 24 Petitioners argue Illinois law, incorporating provisions of the federal Clean Water
-8- Act, requires the IEPA to set permit limits for toxic pollutant discharge on a case-by-case
determination of best available technology whenever the USEPA has not promulgated a
generally applicable ELG that includes such discharge. In the case of the Havana facility,
petitioners contend the IEPA failed to comply with these requirements and that no TBEL was
included in the permit for mercury.
¶ 25 Dynegy argues the IEPA was not required to impose best available technology
TBELs using its best professional judgment. Dynegy contends the IEPA was not required to
impose such TBELs because the 1982 national ELGs imposed by the USEPA apply to the
Havana facility. The IEPA and the Board make similar arguments on appeal. Petitioners argue
the USEPA's 1982 ELG does not apply to discharges associated with the Havana facility's
scrubber/ACI waste stream. Thus, the question at issue is whether the 1982 ELG applies.
¶ 26 In 1982, the USEPA adopted a comprehensive set of rules to regulate discharges
from oil-fueled and coal-fueled electricity-generating plants like the Havana facility. The
USEPA's regulations cover even the smallest amount of "low volume waste sources," defined as
follows:
"[T]aken collectively as if from one source, wastewater from all
sources except those for which specific limitations are otherwise
established in this part. Low volume wastes sources include, but
are not limited to: wastewaters from wet scrubber air pollution
control systems, ion exchange water treatment system, water
treatment evaporator blowdown, laboratory and sampling streams,
boiler blowdown, floor drains, cooling tower basin cleaning
wastes, and recirculating house service water systems. Sanitary
-9- and air conditioning wastes are not included." 40 C.F.R.
§ 423.11(b) (2014).
The plain language of the rule indicates the intent to broadly capture waste streams not
specifically regulated elsewhere by the 1982 ELG. Given that the Havana facility's
scrubber/ACI waste stream is not specifically regulated elsewhere by the 1982 ELG, the waste
stream constitutes a low volume waste source under the language of the rule. Thus, the 1982
ELG applies and the IEPA was not required to adopt TBELs on a case-by-case basis for the
¶ 27 We find support for the conclusion that the 1982 ELG applies to the Havana
facility's waste stream in the USEPA's 2010 NPDES Permit Writers' Manual. Chapter 5.2.3.2
states, in part, as follows:
"As noted above, case-by-case TBELs are established in
situations where EPA promulgated effluent guidelines are
inapplicable. That includes situations such as the following:
***
When effluent guidelines are available for the industry
category, but no effluent guidelines requirements are available for
the pollutant of concern (e.g., a facility is regulated by the effluent
guidelines for Pesticide Chemicals [Part 455] but discharges a
pesticide that is not regulated by these effluent guidelines). The
permit writer should make sure that the pollutant of concern is not
already controlled by the effluent guidelines and was not
considered by EPA when the Agency developed the effluent
- 10 - guidelines." U.S. Environmental Protection Agency National
Pollutant Discharge Elimination System (NPDES) Permit Writers'
Manual, § 5.2.3.2, at 5-45-5-46 (Sept. 2010) (2010 USEPA permit
manual).
Thus, the relevant question is whether the USEPA considered mercury—the toxic pollutant at
issue here.
¶ 28 The 1982 ELG shows mercury was among the toxic pollutants considered when
determining the appropriate effluent limitations for low volume waste sources. See 47 Fed. Reg.
52,290, 52,303 (Nov. 19, 1982) (stating "[t]he following 24 toxic pollutants are excluded from
national regulation because they are present in amounts too small to be effectively reduced by
technologies known to the Administrator" and listing mercury). As the USEPA considered these
pollutants, the 2010 USEPA permit manual directs a permit writer to refrain from imposing best-
professional-judgment limitations and instead use the applicable ELG.
¶ 29 We also note the IEPA issued the draft NPDES permit in April 2011 and sent it to
the USEPA for comment. In June 2011, the USEPA responded, stating it had reviewed the draft
permit and stated it would not object to the issuance of the permit as drafted. The USEPA
recommended the IEPA "should accelerate the collection of the mercury data from quarterly to
monthly and add a specific reopener." The USEPA also made recommendations with respect to
the limitation for total residual chlorine for a waste stream other than the scrubber/ACI waste
stream, showing it could demand more from the IEPA. Thus, the USEPA implicitly agreed with
the IEPA's decision to not develop and impose a case-by-case best-professional-judgment-based
TBEL for the Havana facility scrubber/ACI waste stream.
¶ 30 Although not considered by the Board in making its decision, we find instructive
- 11 - the USEPA's proposed ELG for steam electric power plants. See 78 Fed. Reg. 34,432 (June 7,
2013). In the proposed ELG, the USEPA defined flue gas mercury control (FGMC) wastewater
to specifically include wastewater from ACI systems.
"The term flue gas mercury control wastewater means any process
wastewater generated from an air pollution control system installed
or operated for the purpose of removing mercury from flue gas.
This includes fly ash collection systems when the particulate
control system follows the injection of sorbents or implementation
of other controls to remove mercury from flue gas." 78 Fed. Reg.
34,432, 34,533 (June 7, 2013).
¶ 31 In presenting the proposed ELG's new approach to regulating FGMC wastewater
discharges, the USEPA explained those same discharges are "currently included under the
definition of low volume wastes." 78 Fed. Reg. 34,432, 34,463 (June 7, 2013). Thus, it appears
the USEPA interprets the 1982 ELG to already regulate ACI discharges as low volume wastes.
¶ 32 USEPA did consider whether to regulate for mercury in low volume waste water,
contrary to petitioners' claims and contrary to the finding in Louisville Gas & Electric Co. v.
Kentucky Waterways Alliance, No. 2013-CA-001695-MR (Ky. Ct. App. May 29, 2015).
Moreover, petitioners' reliance on the so-called "Hanlon memo," cited in the Kentucky
Waterways case, is misplaced, as it does not purport to apply to scrubber or ACI discharges, and
thus is not entitled to deference by this court.
¶ 33 All parties agree that, under the Clean Water Act, the IEPA was not required to
establish a TBEL for mercury if the USEPA had already established an applicable ELG.
Because the Havana facility's scrubber/ACI waste stream was subject to the 1982 ELG, the
- 12 - Board did not err in finding the IEPA was not required to adopt TBELs on a case-by-case basis.
¶ 34 C. Citizens' Comments
¶ 35 Petitioners argue the Board erred in declining to enforce IEPA's regulation
requiring response to citizens' comments. Petitioners contend that, while the IEPA provided
specific responses to citizens' comments concerning other issues raised before the Board, the
IEPA said nothing at all concerning case-by-case TBELs. Petitioners argue (1) no legal basis
exists for the Board's refusal to enforce IEPA's regulation on posthearing comments and (2) the
requirement of a responsiveness summary is mandatory and may not be rendered discretionary
by the Board.
¶ 36 In setting forth the requirements of the responsiveness summary, section 166.192
of title 35 of the Illinois Administrative Code (35 Ill. Adm. Code 166.192, adopted at 11 Ill. Reg.
16550 (eff. Oct. 15, 1987)) states it shall include:
"1) An identification of the public participation activity
conducted;
2) Description of the matter on which the public was
consulted;
3) An estimate of the number of persons present at the
hearing;
4) A summary of all the views, significant comments,
criticisms, and suggestions, whether written or oral, submitted at
the hearing or during the time the hearing record was open;
5) The Agency's specific response to all significant
comments, criticisms, and suggestions; and
- 13 - 6) A statement of Agency action, including when
applicable the issuance or denial of the permit or closure plan."
The corresponding federal regulation also requires state agencies to "respond to all significant
comments on the draft permit." 40 C.F.R. § 124.17(a)(2) (2014).
¶ 37 " '[C]omments must be significant enough to step over a threshold requirement of
materiality before any lack of agency response or consideration becomes of concern. The
comment cannot merely state that a particular mistake was made . . . it must show why the
mistake was of possible significance in the results ***.' " Vermont Yankee Nuclear Power Corp.
v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553 (1978) (quoting Portland Cement
Ass'n v. Ruckelshaus, 486 F.2d 375, 394 (D.C. Cir. 1973), cert. denied sub nom. Portland
Cement Corp. v. Administrator, Environmental Protection Agency, 417 U.S. 921 (1974)); see
also Citizens for Clean Air v. United States Environmental Protection Agency, 959 F.2d 839, 845
(9th Cir. 1992).
¶ 38 The selection of which comments are significant necessarily involves a matter of
discretion. A cognizable challenge to an agency's selection decision is not stated unless the
challenging party alleges the agency acted in an arbitrary and capricious manner. Citizens for
Clean Air, 959 F.2d at 845-46.
¶ 39 Here, the IEPA issued the draft permit and sought comments, and petitioners
responded. Along with issuing the permit, the IEPA issued a responsiveness summary
addressing certain comments. Multiple responses dealt with the issue of mercury.
¶ 40 The applicable regulations require the IEPA to respond to significant comments,
criticisms, and suggestions. The regulations do not require a response to all such comments,
criticisms, and suggestions. Petitioners have not established their TBEL comments were
- 14 - significant or the IEPA acted in an arbitrary or capricious manner by not selecting those
comments for a response or by not providing answers sufficient to satisfy petitioners' concerns.
Moreover, the IEPA is entitled to deference in determining whether petitioners' TBEL comments
were significant, and the Board did not err in deferring to IEPA's discretion.
¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, we affirm the Board's decision.
¶ 43 Affirmed.
- 15 -