FILED 2015 IL App (4th) 140644 July 22, 2015 Carla Bender NO. 4-14-0644 th 140645

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."

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¶ 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

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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

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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

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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

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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

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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

140652 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 Havana facility. ¶ 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