Petition for review of order of Pollution Control Board.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Dean Foods Company (Dean) appeals from a decision of the Illinois Pollution Control Board (PCB or Board) pursuant to section 1041 of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1041) which provides that review of Board decisions shall be afforded directly in the appellate court. Dean seeks review of a PCB affirmance of an Environmental Protection Agency (EPA or Agency) action which imposed a condition on Dean's NPDES (National Pollutant Discharge Elimination System), or waste water discharge, permit.
Dean operates its largest dairy processing plant on a 13-acre site in Chemung. The plant maintains its own waste water treatment facility on three acres at the west end of Dean's property. The waste water treatment consists of an activated sludge process followed by two polishing lagoons and a rock filter. The facility is bounded on the west side by the Piscasaw Creek and discharges its treated effluent into the creek through an outfall ditch.
Dean's treatment plant was originally built in the early 1950's as an activated sludge system. In the late 1960's, Dean segregated the waste water stream from the stream used for cooling purposes (non-contact cooling water) in order to reduce the flow through the treatment plant. The two streams were recombined after the waste water was treated. Two polishing lagoons were also added to provide advanced treatment. Further improvements, including the rock filter, were made to the plant in the 1970's.
The system Dean is now using is conducive to the growth of algae in the lagoons. The effluent, which has already been partially treated in an activated sludge process, lets sun shine through the water which in turn stimulates the growth of algae on the bottom of the lagoons. The algae becomes a major component of the TSS (total suspended solids) in the effluent. Dean is occasionally unable to meet the TSS standard set by the EPA.
In September 1973 Dean requested permission from the Agency, pursuant to the Dilution Rule (Rule 401 of the Board's regulations, now codified as 35 Ill. Adm. Code sec. 304.102) to sample its effluent for compliance with effluent limitations at a point after the treated waste water stream was combined with the cooling water stream and just prior to discharge into the Piscasaw Creek.
In its reply, the Agency noted first that its regulations prohibit dilution of wastes for the purpose of complying with effluent standards. Then the Agency stated that it could designate a sampling point such as that requested by Dean, but only after it had determined that the best degree of treatment of waste water consistent with technological feasibility, economic reasonableness, and sound engineering judgment (BDT) had been provided prior to sampling as required by the Dilution Rule. The Agency requested more information in order to make a determination about BDT at the Chemung plant. Dean provided the necessary information, and the Agency replied by letter that Dean's treatment was yielding results that were
"certainly within the intent of the regulations to provide treatment consistent with technological feasibility. Your letter suggests that the cooling water had not been introduced for the express purpose of diluting the effluent from the waste-water treatment facilities and is consistent with Rule 401(a) of the Illinois water pollution regulations."
Subsequently, in 1975, the Agency issued Dean a permit allowing sampling after the two streams were combined. This permit was renewed in 1977. Between 1973 and 1981, Agency representatives collected samples at the point designated in the permit. At no time was it recommended or even suggested that Dean should be sampling before mixture.
In 1981 Dean's permit was due for renewal. The first draft permit, dated April 17, 1981, as well as the second draft, retained the earlier sampling point. In the final draft, however, the sampling point was changed to require sampling of the treated waste water before any mixture with the cooling water. This draft was dated July 7, 1981. After it received the July draft permit, Dean met with Agency officials to discuss the permit condition. Dean also objected in writing to the condition, directed its engineers to give information to the Agency on the background of the existing sampling point and on the effectiveness of Dean's treatment system, and offered to provide any further information needed by the Agency to make its determination. The Agency made no response and on September 2, 1981, the final permit, containing the challenged condition, was issued.
Dean appealed from the permit condition to the PCB and a hearing was held before a hearing officer. At the hearing Dean presented evidence that it was providing BDT to its waste water before mixing it with cooling water. This evidence had not previously been presented to the Agency and the Agency objected to its introduction at the Board hearing. The hearing officer allowed the evidence to be entered on the record subject to a Board ruling on admissibility.
Mark Schollenberger, an Agency employee who prepared both the draft and final Dean permits, testified at the hearing after his written narrative statement was admitted as evidence. Schollenberger's written statement established that he was the engineer who reviewed Dean's 1981 application for permit renewal. In the statement, 35 Ill. Adm. Code sec. 304.12(a) was paraphrased as follows:
"In order for a treatment works or wastewater source to use dilution to meet effluent standards, it must provide the best degree of treatment consistent with technological feasibility, economic reasonableness and sound engineering judgment."
The statement then explained that Schollenberger raised the issue of whether Dean was providing BDT because of the fact that they were sampling after the treated waste water was diluted by the cooling water and, even with this dilution, Dean's effluent was violating the effluent standards for suspended solids. The statement concluded that the Agency did not have enough information to determine that Dean was providing BDT and set forth what data was needed to make that determination.
Schollenberger asserted both in his written statement and on cross-examination that, prior to issuing the final permit, the Agency told Dean it needed additional information. He acknowledged, however, that the request was never made in writing. Dean denied that it was ever informed that more information was required.
On cross-examination Schollenberger also testified that the Agency had no written guidelines beyond the Dilution Rule itself as to what constitutes BDT, that he changed his position as to the location of Dean's sampling point because Dean had not supplied sufficient proof that they were providing BDT, that the only guidelines he followed were contained in the Dilution Rule, that he had relied on the determination made about BDT by the Agency in 1973 but then decided something more recent was needed, that the additional data he required were his personal conclusions as to what was needed, and that one of the criteria he had looked for was impact on the water quality of the receiving stream which was not a criteria called for by the Dilution Rule for determining BDT. Finally, Schollenberger testified that some type of filtration might enable Dean to improve its waste water treatment but that he did not know of any particular new or different method that would accomplish that task. On redirect, Schollenberger said the additional data he wanted to see from Dean was based on discussions with supervisors and other engineers within the Agency.
Schollenberger's credibility was challenged on cross-examination, and the hearing officer found his answers "slow, uncertain and generally non-responsive." The hearing officer added that in his opinion Schollenberger's "difficulty in making a proper response was that the witness himself was uncertain as to the basis for his earlier decisions."
On August 22, 1984, the Board affirmed the Agency's action, labeled as error the admission of the challenged evidence, and held that the Agency was not estopped (as Dean had urged in its trial brief) from changing the sampling point. Dean then filed this appeal.
On appeal, Dean contends that: (1) the PCB incorrectly interpreted its own regulation controlling dilution of effluent; (2) the PCB erroneously excluded evidence offered by Dean at the PCB hearing; (3) the evidence before the Board weighed so heavily in Dean's favor that a Board decision affirming the Agency action could never stand; (4) the Board erred in failing to find that the Agency was estopped from changing Dean's sampling point.
The first issue raised by Dean is the proper interpretation of the Dilution Rule (35 Ill. Adm. Code ...