ESG Watts, Inc. v. Pollution Control Bd.

• Decision Date: 31 January 1992
• Docket Number: No. 3-91-0383,3-91-0383
• Citation: 224 Ill.App.3d 592,167 Ill.Dec. 48,586 N.E.2d 1320
• Parties: , 167 Ill.Dec. 48 ESG WATTS, INC., Petitioner-Appellant, v. POLLUTION CONTROL BOARD, Illinois Environmental Protection Agency, and the People of the State of Illinois, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 1320

586 N.E.2d 1320

224 Ill.App.3d 592, 167 Ill.Dec. 48

ESG WATTS, INC., Petitioner-Appellant, v. POLLUTION CONTROL BOARD, Illinois Environmental Protection Agency, and the People of the State of Illinois Respondents-Appellees.

No. 3-91-0383.

Appellate Court of Illinois Third District.

Jan. 31, 1992.

Kevin T. McClain (argued), Immel, Zelle, Ogren, McClain & Costello, Springfield, for ESG Watts, Inc.

Susan Frederick Rhodes (argued), Asst. Atty. Gen., Rosalyn B. Kaplan, Sol. Gen., Chicago, for Pollution Control Bd., and the People.

Justice HAASE delivered the opinion of the Court.

The petitioner, ESG Watts, Inc. (Watts), filed applications for permits to construct an industrial waste storage and treatment facility. This case concerns Watts' application for a National Pollutant Discharge Elimination System (NPDES) permit. The Illinois Environmental Protection Agency (IEPA) denied the permit and Watts appealed the decision to the Illinois Pollution Control Board (Board). The Board affirmed the IEPA's denial of the permit. Watts appeals from that decision.

On February 11, 1987, Watts, a subsidiary of Watts Trucking Services, Inc., filed applications for a NPDES permit and a part B Resource Conservation and Recovery Act of 1976 permit (42 U.S.C. section 6901 et seq.) (RCRA) with the IEPA to construct a facility in Rock Island, Illinois for the storage and treatment of hazardous waste. The proposed facility would store and treat hazardous wastes that are water based or aqueous in nature such as wastes containing heavy metals, dichromate, cyanide, sulfide, oil, and solvent residues. The complex would be designed to treat and discharge 100,000 gallons of wastewater per day.

Watts' application for the NPDES permit indicated that the treated wastewater was to be discharged into the City of Rock Island's storm sewer system, and from there it eventually would be discharged into the Mississippi River.

On March 25, 1987, Watts requested a waiver of the 90-day period for final IEPA action and suggested a deadline date of 210 days from the initial date of filing. Watts' request for a waiver of the deadline was repeated 3 more times as each expiration date approached. On August 12, 1988, the IEPA issued Watts a tentative draft RCRA permit. At that time, the IEPA informed Watts that it would issue a final decision on the permit after a public comment period.

In June 1988, Watts advised the IEPA that it would have to make changes concerning the method of discharge of the wastewater. In November 1988, Watts' consulting engineer notified the IEPA that Watts had changed its planned method of disposal of the wastewater. The engineer indicated that the original method of disposal (into the City's storm sewer) was not feasible since the storm sewer system was interconnected with the sanitary sewer system. Therefore, Watts noted that it was going to pursue plans for routing the discharge through a private pipeline into the Mississippi River. This method, however, required an easement from the City of Rock Island to extend the pipeline under a city street.

On September 2, 1988, the IEPA issued a public notice regarding the proposed NPDES permit. Although a public hearing was not held on the NPDES permit, a hearing was held on Watts' RCRA permit application.

On March 29, 1990, the City denied Watts' request for an easement. The next day, the IEPA denied Watts' NPDES permit application. The denial letter stated that "[a]n NPDES permit for the proposed project cannot be issued because a feasible discharge location has not been identified. Construction permits cannot be issued until an NPDES permit can be issued."

Thereafter, Watts filed an appeal with the Board. Following a hearing, the Board affirmed the IEPA's denial of Watts' permit request. Watts appeals from that decision.

On appeal, Watts first argues that the IEPA failed to make a final decision regarding the permit within the statutory review period set forth in section 39(a) of the Environmental Protection Act (Act) (Ill.Rev.Stat.1989, ch. 111 1/2, par. 1039(a)).

We find that Watts waived the issue by failing to raise it in the proceedings before the Board. (See Smith v. Dept. of Professional Regulation (1990), 202 Ill.App.3d 279, 147 Ill.Dec. 544, 559 N.E.2d 884.) Moreover, we note that Watts repeatedly waived the statutory review period throughout the permit approval process.

Watts next contends that the Board erroneously affirmed the IEPA's denial of the permit. Watts attempts to intermingle its problems in obtaining an easement from the City of Rock Island with the IEPA's denial of the permit. Watts cites County of Lake v. PCB (1983), 120 Ill.App.3d 89, 75 Ill.Dec. 750, 457 N.E.2d...