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.
No. 1-15-0971
SIXTH DIVISION
February 26, 2016
2016 IL App (1st) 150971
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Justices Hoffman and Delort concurred in the judgment and opinion.
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
¶ 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
¶ 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
¶ 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.
¶ 20 The petitions named both the District and the IEPA as respondents. In each action, petitioners argued that the 1.0 mg/L effluent limit for phosphorus was not stringent enough to prevent violations of water quality standards. Therefore, petitioners argued that the issuance of the permits violated the Act (
¶ 21 On March 6, 2014, the Board consolidated petitioners’ three separate petitions. The parties subsequently filed cross-motions for summary judgment.
¶ 22 On December 18, 2014, the Board granted summary judgment for respondents and denied petitioners’ motion for summary judgment. Petitioners filed a motion for reconsideration, which the Board denied. Petitioners appealed directly to this court pursuant to section 41(a) of the Act (
“If the record, including pleadings, depositions and admissions on file, together with any affidavits, shows that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law, the Board will enter summary judgment.”
¶ 23 Section 101.516(b) mirrors section 2-1005(c) of the Illinois Code of Civil Procedure (
¶ 24 Because the parties here filed cross-motions for summary judgment, they have agreed that no genuine issue of material fact exists and that only a question of law is involved. Harwood v. McDonough, 344 Ill. App. 3d 242, 245 (2003). However, the mere filing of cross-motions for summary judgment does not establish that there is no issue of material fact, nor does it obligate the Board to render summary judgment. Pielet v. Pielet, 2012 IL 112064, ¶ 28.
¶ 25 Review of the record indicates that genuine issues of material fact exist as to whether the IEPA complied with the Act and the corresponding federal and Board regulations when issuing final permits for the Stickney, Calumet, and O‘Brien plants.
¶ 26 The Act (
¶ 27 Water quality standards have two primary components: designated uses for a body of water (such as public water supply, recreation, or agriculture) and a set of criteria specifying the maximum concentration of pollutants that may be present in the water without impairing its suitability for designated uses. American Paper Institute, Inc. v. United States Environmental Protection Agency, 996 F.2d 346, 349 (D.C. Cir. 1993). “Criteria, in turn, come in two varieties: specific numeric limitations on the concentration of a specific pollutant in the water (e.g., no more than 0.05 milligrams of chromium per liter) or more general narrative statements applicable to a wide set of pollutants (e.g., no toxic pollutants in toxic amounts).” Id.
¶ 28 The distinctive nature of each kind of criteria “inevitably leads to significant distinctions in how the two types of criteria are applied to derive effluent limitations in individual permits. When the standard includes numeric criteria, the process is fairly straightforward: the permit merely adopts a limitation on a point source‘s effluent discharge necessary to keep the concentration of a pollutant in a waterway at or below the numeric benchmark. Narrative criteria, however, present more difficult problems: How is a state or federal NPDES permit writer to divine what limitations on effluent discharges are necessary to assure that the waterway contains, for example, ‘no toxics in toxic amounts‘?” Id.
¶ 29 To address these difficulties, the EPA promulgated section 122.44 (d)(1)(vi) (
¶ 30 In the present case, petitioners argue that the IEPA placed a 1.0 mg/L phosphorus effluent limit simply because that was the limit to which the District agreed, and that this limit was set without any analysis as to whether it was stringent enough to ensure that water quality standard violations would not occur. Respondents counter that the Board has not yet developed any numeric limitations for
¶ 31 Although respondents are correct that the Board has not developed any numeric water quality standards for phosphorus, as discussed it has developed narrative statements calling for waters to be free from unnatural plant or algal growth. See
¶ 32 As discussed, to comply with such narrative statements, the IEPA may calculate a numeric water quality criterion derived from state numeric criterion or from the federal recommendation that “will attain and maintain applicable narrative water quality criteria and will fully protect the designated use.”
¶ 33 Such evidence that the IEPA‘s 1.0 mg/L phosphorus effluent limit is about 10 times the limit of out-of-state and federal standards raises a genuine issue of material fact regarding whether the 1.0 mg/L phosphorus effluent limit allowed by each of the permits at issue here allows for a level of phosphorus so high that it has the reasonable potential of violating Illinois water quality standards by causing unnatural plant or algal growth contrary to the Board‘s narrative standard.
¶ 34 Respondents argue that out-of-state numeric water quality standards, and the federal water quality recommendation are not binding in Illinois. While true, in the absence of any numeric water quality standards for phosphorus established by the Board, the out-of-state numeric water quality standards and the federal water quality recommendation are the type of data that may be used when determining the conditions of the permit that satisfy the narrative statements. Id. Such data show that the level of phosphorus allowed by the permits at issue here for the Stickney, Calumet, and O‘Brien plants is approximately 10 times greater than that allowed in Wisconsin, Minnesota, or under the federal recommendation. Respondents point to no type of testing or analysis performed by the IEPA that would
¶ 35 The data provided by petitioners regarding the out-of-state numeric water quality standards and the federal water quality recommendation, coupled with the data in the Egan study, raise a genuine issue of material fact regarding whether, to prevent unnatural plant or algal growth, the phosphorus level should be at the level set by the IEPA (1.0 mg/L) or closer to the lower levels set by Wisconsin, Minnesota, and the federal guideline. If the 1.0 mg/L level is so high as to have the reasonable potential of causing unnatural plant or algal growth, then it is in violation of the narrative statements contained in the Board regulations calling for waters to be free from such growth. Given this question of material fact, we reverse the order granting summary judgment in favor of respondents and remand for further proceedings.
¶ 36 Respondents argue, though, that we should affirm the summary judgment order in their favor because, in a responsiveness summary addressing comments it had received from the public, the IEPA stated that its biologists have not observed the presence of any unnatural plant or algal growth in the waters downstream of the Stickney, Calumet and O‘Brien plants; respondents argue that in the absence of any unnatural plant or algal growth in the downstream waters, there has been no violation of the narrative statements calling for waters to be free of such growth.
¶ 37 Respondents’ argument is not well-taken. The responsiveness summary does not indicate how regularly the IEPA biologists monitor the downstream waters, when they most recently monitored those waters, and whether the waters currently contain any unnatural plant or algal growth in violation of the narrative statements. Given such questions of material fact regarding the biologists’ findings, summary judgment is inappropriate.
¶ 38 Further, we note the applicable regulations require the IEPA, when establishing the conditions of the issued NPDES permit, to ensure that the permit prevents discharges of pollutants having the “reasonable potential” of violating Illinois water quality standards contained in the narrative statements. See
¶ 39 Respondents further argue we should affirm the summary judgment order in their favor because the permits at issue here contain a special condition mandating that the District‘s effluent cannot cause or contribute to water quality violations. Respondents argue that such a special condition ensures the District‘s compliance with all applicable water quality standards.
A similar argument was recently rejected in Natural Resources Defense Council v. United States Environmental Protection Agency, 808 F.3d 556 (2d Cir. 2015). There, the USEPA issued a permit to regulate the discharge of ballast water from ships. Id. at 562. The permit contained the following condition:
¶ 40 The United States Court of Appeals held that this condition did not ensure compliance with water quality standards, as it was insufficient to give a shipowner guidance as to what was expected or to allow any permitting authority to determine whether a shipowner was violating water quality standards. Id.
¶ 41 Similarly, here, the special condition did not ensure compliance with water quality standards as it gave no guidance as to what was expected from the District, nor did it allow the IEPA to determine whether the District was violating water quality standards.
¶ 42 For the foregoing reasons, we reverse the order granting respondents’ motion for summary judgment and denying petitioners’ cross-motion for summary judgment, and remand for further proceedings. As a result of our disposition of this case, we need not address the other arguments on appeal.
¶ 43 Reversed and remanded.