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Prairie Rivers Network v. Illinois Pollution Control Board

ELR Citation: 46 ELR 20044
Nos. 1-15-0971, (Ill. App., 02/26/2016)

An Illinois appellate court held that the Illinois Pollution Control Board erred when it upheld the state environmental agency's decision to reissue NPDES permits for three large water reclamation plants in the Chicago area. Petitioners argued that the permits fail to include conditions ensuring that discharges of phosphorous do not violate applicable state water quality standards. The Illinois Pollution Control Board denied their claim and upheld the permits on motions for summary judgment, but because genuine issues of material fact exist, the appellate court reversed and remanded. The agency set a numeric phosphorus effluent limit of 1.0 mg/L, but there is no evidence that this limit was derived from state or federal standards. To the contrary, petitioners provided scientific evidence that phosphorus levels should be closer to 0.05 mg/L to prevent unwanted algal and plant growth in receiving and downstream waters. They also presented evidence that the 1.0 mg/L limit is nearly 10 times the out-of-state and federal limits. This evidence raises a genuine issue of material fact regarding whether the permits will lead to excess phosphorus levels in violation of state water quality standard violations. And although the permits contain a "special condition" mandating that the permitted effluent not cause or contribute to water quality violations, this condition does not ensure compliance as it provides no guidance as to what is expected or how violations will be determined by the state agency. The court, therefore, reversed and remanded the matter for further proceedings.