According to a recent court decision, the Illinois Pollution Control Board exceeded its authority and acted arbitrarily and capriciously when it placed several conditions on an adjusted pollution standard in a wastewater discharge permit. This case is significant because it curbs the ability of the Board to impose requirements on businesses that are unreasonable and not authorized by Illinois law.
At issue in Emerald Performance Materials, LLC v. Illinois Pollution Control Board was a wastewater treatment plant that Emerald Performance Materials used to process wastewater from operations that included PVC resin manufacturing and production of accelerators and antioxidants. After treatment, the wastewater is eventually discharged into the Illinois River, and the discharge exceeds the 3 mg/L total ammonia nitrogen effluent levels allowed by Illinois law. The ammonia nitrogen that is discharged is formed in the wastewater treatment process and apparently not during the manufacturing processes used by Emerald.
Emerald filed a petition for the renewal of an adjusted standard of 155 mg/L for ammonia that had been previously granted by the Board. The Board ruled that Emerald had met the requirements for an adjusted standard and set that standard at 140 mg/L. The Board also imposed several conditions on its grant of the adjusted standard, including: (1) maintenance of various ammonia reduction measures, including using ammonia reduction as a metric in the employee gain sharing plan; and (2) in order to seek renewal or modification of the adjusted standard, Emerald must implement agricultural best management practices within the Illinois River-Senachwine Lake Watershed to provide a partial reduction in the total nitrogen loading to the watershed by offsetting at least 45% of the nitrogen represented in 841 lbs/day ammonia nitrogen based on the 30-day average load limit.
The Illinois Appellate Court ruled that both of those conditions were improper. The Court ruled that the employee gain sharing plan condition did not advance environmental protection because there was no evidence that this condition would result in any reduction of ammonia. The Court also ruled that the offset condition exceeded the Board’s authority because the Board “may not impose preconditions on a petitioner’s right to renew or modify the adjusted standard. We consider that the offset condition improperly changes the statutory requirements and that the Board exceeded its authority in imposing it.” The Court also found that the offset condition was arbitrary and capricious based on the “Board’s failure to properly consider the feasibility and reasonableness” of complying with the condition, as well as the lack of “evidence that Emerald’s discharge is negatively impacting the environment.”
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