Prairie Rivers Network v. Ill. Pollution Control Bd.
| Decision Date | 26 February 2016 |
| Docket Number | No. 1–15–0971.,1–15–0971. |
| Citation | 50 N.E.3d 680,401 Ill.Dec. 538 |
| Parties | PRAIRIE RIVERS NETWORK ; Natural Resources Defense Council; Sierra Club, Environmental Law and Policy Center; Friends of the Chicago River ; and Gulf Restoration Network, Petitioners–Appellants, v. The ILLINOIS POLLUTION CONTROL BOARD; the Illinois Environmental Protection Agency; and Metropolitan Water Reclamation District of Greater Chicago, Respondents–Appellees. |
| Court | United States Appellate Court of Illinois |
Albert Ettinger, Chicago, for petitioners Sierra Club and Gulf Restoration Network.
Jessica Dexter, Duluth, MN, for petitioners Environmental Law and Policy Center and Friends of the Chicago River.
Ann Alexander, Chicago, for petitioner Natural Resources Defense Council.
Kim Knowles, Chicago, for petitioner Prairie Rivers Network.
Lisa Madigan, Attorney General, Chicago (Carolyn E. Shapiro, Solicitor General, and Evan Siegel, Assistant Attorney General, of counsel), for petitioners Pollution Control Board and Environmental Protection Agency.
Ronald M. Hill, Lisa K. Luhrs Draper, Ellen M. Avery, and Jorge T. Mihalopolous, Chicago, for petitioner Metropolitan Water Reclamation District of Greater Chicago.
delivered the judgment of the court, with opinion.
¶ 1 The Illinois Environmental Protection Agency (IEPA) issued permits allowing for the operation of three different water reclamation plants under the control of the Metropolitan Water Reclamation District (District). After the IEPA issued those permits, the six petitioners, Prairie Rivers Network, Natural Resources Defense Council, Sierra Club, Environmental Law & Policy Center, Friends of the Chicago River, and Gulf Restoration Network, filed petitions for review with the Illinois Pollution Control Board (Board). Petitioners alleged that the IEPA erred in issuing the permits because it failed to include conditions ensuring that discharges of phosphorus do not violate applicable Illinois water quality standards. The parties filed cross-motions for summary judgment. The Board denied petitioners' motion for summary judgment and granted summary judgment to the IEPA and the District, thereby upholding the issuance of the permits. Petitioners appeal. Because we find genuine issues of material fact exist, we reverse and remand for further proceedings.
¶ 2 The District treats approximately 1.4 billion gallons of wastewater every day at its seven water reclamation plants. The water reclamation plants discharge the treated water, or effluent, into both natural and man-made waterways pursuant to National Pollutant Discharge Elimination System (NPDES) permits issued by the IEPA. The Federal Water Pollution Control Act (Clean Water Act) (33 U.S.C. § 1342 (2012)
), established the NPDES permit program as the national framework for regulating wastewater discharges into waterways from point sources, such as the outfalls from the District's water reclamation plants. See 33 U.S.C. § 1362(14) (2012).
¶ 3 The IEPA and the Board each have distinct roles in the issuing of NPDES permits in Illinois. The IEPA is authorized under the Environmental Protection Act (Act) to issue NPDES permits. See 415 ILCS 5/39 (West 2014)
. The Board regulates the standards and procedures that must be met before the IEPA may approve permits under the Act. See 415 ILCS 5/13(b) (West 2014). The Board has established specific regulations (discussed later in this order) “to preserve the integrity of bodies of water in Illinois affected by [the] IEPA's issuance of a NPDES permit.” Illinois Environmental Protection Agency v. Illinois Pollution Control Board, 386 Ill.App.3d 375, 381, 324 Ill.Dec. 693, 896 N.E.2d 479 (2008).
¶ 4 The IEPA must comply with the Act and the Board's general water quality regulations to protect and maintain water quality standards in Illinois before issuing a NPDES permit. Id.
¶ 5 In the present case, the IEPA issued NPDES permits to the District for each of its water reclamation plants allowing the District to discharge effluent for a set period of time and in accordance with set criteria. In August 2006, the District applied to the IEPA for reissuance of its existing NPDES permits for its three largest water reclamation plants: the Stickney plant, the Calumet plant, and the O'Brien plant.
¶ 6 The Stickney plant is situated in Cicero and treats wastewater from sections of Chicago and its suburbs. Its main outfall discharges to the Chicago Sanitary and Ship Canal.
¶ 7 The Calumet plant, located in Chicago, treats wastewater from areas of Chicago and the south suburbs. Its main outfall discharges to the Little Calumet River.
¶ 8 The O'Brien plant, located in Skokie, treats wastewater from parts of Chicago and the suburbs. Its main outfall discharges to the North Shore Channel.
¶ 9 In November 2009, the IEPA issued draft permits for the Stickney, Calumet and O'Brien plants that did not include any numeric limits on the amount of phosphorus discharged. The IEPA ordered a public comment period to run through mid-December 2013. In late 2009, petitioners submitted comments stating that the permits should include limits on the water reclamation plants' phosphorus discharges.
¶ 10 Petitioners contended that high levels of phosphorus discharged by the Stickney, Calumet, and O'Brien water reclamation plants contribute to the growth of excess levels of algae and plants in both receiving and downstream waters, which in turn leads to wide fluctuations in dissolved oxygen levels over a 24–hour period, as the plants and algae produce oxygen during daytime hours and breathe it at night.
¶ 11 Petitioners discussed how such phosphorus pollution is causing or contributing to non-compliance with applicable water quality standards. The water quality standards cited were those involving certain numeric and narrative standards. The numeric standards provide that dissolved oxygen concentrations shall not fall below certain specific numeric limitations set by the Board. See 35 Ill. Adm.Code 302.206
, 302.405, amended at 39 Ill. Reg. 9388 (eff. July 1, 2015). The more general narrative standards set by the Board requires Illinois bodies of water to be free from unnatural plant or algal growth. See 35 Ill. Adm.Code 302.203, amended at 39 Ill. Reg. 9388 (eff. July 1, 2015) (“waters of the State shall be free from sludge or bottom deposits, floating debris, visible oil, odor, plant or algal growth, color or turbidity of other than natural origin”), and 35 Ill. Adm.Code 302.403, amended at 39 Ill. Reg. 9388 (eff. July 1, 2015) (“Waters subject to this subpart shall be free from unnatural sludge or bottom deposits, floating debris, visible oil, odor, unnatural plant or algal growth, or unnatural color or turbidity.”).
¶ 12 Petitioners offered expert testimony, scientific treatises, and water quality criteria developed by the Environmental Protection Agency (USEPA) and other states showing that levels of phosphorus in the water bodies need to be below 1.0 mg/L in order to prevent violations of the numeric and narrative standards.
¶ 13 Petitioners summarized findings of the IEPA that the waters receiving effluent from the Stickney, Calumet, and O'Brien plants, are impaired for aquatic life, with phosphorus and low dissolved oxygen listed as potential causes.
¶ 14 After the close of the public comment period and following review of data supplied by the District, officials of the USEPA stated that the IEPA should conduct an analysis of the effects of the District's phosphorus discharges on water quality. In October 2011, the IEPA and USEPA made a joint plan for an extensive study of the effects of the District's phosphorus discharges.
¶ 15 Later that month, the District proposed an implementation plan for a phosphorous effluent limit of 1.0 mg/L at each of the plants, envisioning that the O'Brien plant come into compliance in 10 years, the Calumet plant come into compliance in six years, and the Stickney plant come into compliance in four years. Compliance with the 1.0 mg/L phosphorus effluent limit will reduce the phosphorus discharge from the District plants by nearly 50%. However, the District pointed to no data showing why it did not propose a phosphorus effluent limit below 1.0 mg/L, in accordance with the phosphorus levels set by other states and as recommended by the USEPA.
¶ 16 Plans to develop scientifically based phosphorus limits continued for over a year after the District proposed the 1.0 mg/L limit. The District agreed to participate in a phosphorus impact study, and its monitoring and research department was working on a proposal as late as December 6, 2012. Later in December 2012, though, the District decided not to participate in the phosphorus impact study because it did not believe such a study would be productive.
¶ 17 The IEPA submitted revised draft permits in October 2013. The USEPA informed the IEPA that it did not object to issuance of any of the permits.
¶ 18 In December 2013, the IEPA issued final permits for the three plants. Each permit imposed a 1.0 mg/L effluent limit for total phosphorus in accordance with the District's proposal. The IEPA also included a “special condition,” expressly mandating that the District's effluent cannot cause or contribute to water quality violations. Under another special condition, the IEPA can modify the permits and impose more stringent effluent limits if necessary to comply with any new laws, regulations, or judicial orders.
¶ 19 On January 27, 2014, petitioners filed separate petitions asking the Board to review each of the three permits.
These third-party petitions to the Board were brought pursuant to sections 40(e)(1) and 40(e)(2) of the Act (415 ILCS 5/40(e)(1), (2)
(West 2014)). Petitioners bore the burden of proving that the permits violated the Act and/or the Board's regulations. Illinois Environmental Protection Agency, 386 Ill.App.3d at 382, 324 Ill.Dec. 693, 896 N.E.2d 479.
¶ 20 The petitions named both the District and the IEPA as respondents. In...
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