SIXTH DIVISION February 26, 2016

No. 1-15-0971

PRAIRIE RIVERS NETWORK; NATURAL ) Petition for Review of RESOURCES DEFENSE COUNCIL; SIERRA ) an Order of the Illinois CLUB, ENVIRONMENTAL LAW AND POLICY ) Pollution Control Board CENTER; FRIENDS OF THE CHICAGO ) RIVER; and GULF RESTORATION NETWORK, ) ) Pollution Control Board Petitioners-Appellants, ) Nos. 14-106 ) 14-107 v. ) 14-108 ) THE ILLINOIS POLLUTION CONTROL BOARD; ) THE ILLINOIS ENVIRONMENTAL PROTECTION ) AGENCY; and METROPOLITAN WATER ) RECLAMATION DISTRICT OF GREATER ) CHICAGO, ) ) Respondents-Appellees. )

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. No. 1-15-0971

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) (

(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

(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,

(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.

¶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

-2- No. 1-15-0971

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

(eff. July 1,

-3- No. 1-15-0971

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

(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

(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,

-4- No. 1-15-0971

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,

.

¶ 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

-5- No. 1-15-0971

prevent violations of water quality standards. Therefore, petitioners argued that the issuance of

the permits violated the Act (415 ILCS 5/1 et seq. (West 2014)), and the Board's corresponding

regulations. 35 Ill. Adm. Code 101.100 et seq. (2015).

¶ 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 (415 ILCS 5/41(a) (West 2014)). Petitioners argue that the Board erred in denying their

motion for summary judgment and granting summary judgment for respondents. The Board

entered the summary judgment order for respondents pursuant to section 101.516(b) of Title 35

of the Illinois Administrative Code (35 Ill. Adm. Code 101.516(b), amended at

(eff. Sept. 8, 2015)), which states:

"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 (735

ILCS 5/2-1005(c) (West 2014)), which provides for summary judgment in civil proceedings, and

for which the standard of review is de novo. We employ the same de novo standard of review

here. See Romano v. Municipal Employees Annuity & Benefit Fund,

(2008) (employing the de novo standard of review when reviewing the administrative agency's

grant of summary judgment).

-6- No. 1-15-0971

¶ 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,

(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,

.

¶ 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 (415 ILCS 5/11 (West 2014)), incorporates Clean Water Act requirements into

the Illinois NPDES permitting program. NPDES permits must "contain those terms and

conditions, including but not limited to schedules of compliance, which may be required to

accomplish the purposes and provisions of this Act." 415 ILCS 5/39(b) (West 2014). Pursuant

thereto, the Board has adopted regulations requiring the IEPA, when establishing the conditions

of each issued NPDES permit, to "ensure" that the permit prevents discharges of pollutants that

have the "reasonable potential" of violating any Illinois water quality standard, including State

narrative criteria for water quality. See 35 Ill. Adm. Code 304.105, amended at

(eff. Feb. 26, 2014), 309.141(d)(1), 309.143(a), amended at

(eff. June 26,

2015). The IEPA must also "ensure" that NPDES permits are sufficiently stringent to comply

with federal regulations (35 Ill. Adm. Code 309.141(d)(2) (2015)), one of which similarly

requires that such permits prevent discharges of pollutants having the "reasonable potential" of

violating a State water quality standard. See

(d)(1)(i) (2016).

¶ 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

-7- No. 1-15-0971

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,

(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)."

¶ 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'?"

¶ 29 To address these difficulties, the EPA promulgated section 122.44 (d)(l)(vi) (

(d)(1)(vi) (2016)). "That rule requires NPDES permit writers to use one of three

mechanisms to translate relevant narrative criteria into chemical-specific effluent limitations.

Specifically, the regulation provides that a permit writer must establish effluent limits from

narrative criteria by using (1) a calculated numeric water quality criterion derived from such

tools as a proposed state numeric criterion or an 'explicit state policy or regulation interpreting its

narrative water quality criterion'; (2) the EPA recommended numeric water quality criteria, but

only on a 'case-by-case basis' and 'supplemented where necessary by other relevant information';

and/or (3) assuming certain conditions are met, limitations on the discharge of an 'indicator

-8- No. 1-15-0971

parameter,' i.e., a different pollutant also found in the point source's effluent." (Emphasis in

original.) American Paper,

.

¶ 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 phosphorus in Illinois rivers and streams and, as such, that the IEPA was

not required to include a condition in the permits requiring phosphorus limits to ensure that the

District meet a nonexistent numeric water quality standard. Respondents argue that in the

absence of any numeric water quality standards for phosphorus, the IEPA would have been

justified in deciding not to impose any phosphorus effluent limit in the permits at all for the

Stickney, Calumet, and O'Brien plants, and that petitioners have no cause to complain about the

1.0 mg/L phosphorus effluent limit provided for in the permits, which will reduce phosphorus

discharge by almost 50%.

¶ 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 35 Ill. Adm. Code 302.203, 302.403,

amended at

(eff. July 1, 2015).

¶ 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."

(d)(1)(vi)(A) (2016). The IEPA here set a

numeric phosphorus effluent limit of 1.0 mg/L, but there is no evidence that such a limit was

-9- No. 1-15-0971

derived from any state or federal standards. To the contrary, petitioners presented scientific

evidence from a study of phosphorus at the Egan plant (the Egan study) that levels of phosphorus

should be lower than 0.05 mg/L to prevent the growth of excess levels of algae and plants in

receiving and downstream waters. Petitioners also presented evidence that: the USEPA

recommends a phosphorus water quality standard of 0.076 mg/L for Illinois's ecoregion; 1

Wisconsin's phosphorus water quality standard is 0.1 mg/L; and Minnesota's phosphorus water

quality standard is 0.15 mg/L.

¶ 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.

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

1 The EPA divides the nation into 14 ecoregions, based on landscape-level geographic features including climate, topography, regional geology and soils, biogeography, and broad land use patterns.

- 10 - No. 1-15-0971

no type of testing or analysis performed by the IEPA that would explain or justify the 1.0 mg/L

phosphorus effluent limit allowed by the permits here, or would explain why it does not more

closely correspond to the Wisconsin and Minnesota limits or to the federal recommendation.

¶ 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

- 11 - No. 1-15-0971

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 35 Ill. Adm. Code 304.105, amended at

(eff. Feb. 26, 2014), 309.141(d)(1), 309.143(a), amended at

(eff. June 26,

2015);

(d)(1)(i) (2016). Thus, the focal point of the analysis is not whether

the waters currently contain unnatural plant or algal growth, but whether there is a reasonable

potential that the phosphorus discharge allowed under the permits could cause such unnatural

plant or algal growth in the future. As discussed, a question of material fact exists regarding

whether such a reasonable potential exists, and therefore summary judgment is inappropriate.

¶ 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,

(2d Cir. 2015). There, the USEPA issued a

permit to regulate the discharge of ballast water from ships.

. The permit contained

the following condition: "Your discharge must be controlled as necessary to meet applicable

water quality standards in the receiving water body or another water body impacted by your

discharges."

.

- 12 - No. 1-15-0971

¶ 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.

¶ 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.

- 13 -