No. 3--07--0565 (Consolidated with No. 3–07–0819)

_____________________________________________________________________________ Filed October 7, 2008 IN THE AP PE LLATE COU RT OF ILLIN OIS THIR D DI STRICT A.D., 2008

IL LI NOIS ENVI

RONMENTAL PROTECTI ON ) AGENCY and THE VIL

LAGE OF NEW L

ENOX, ) ) On Direct Appeal from the Petitioners-Appellants, ) Decision of the Illinois Pollution ) Control Board v. ) ) No. PCB 04-88 IL LI NOIS POLLUTI ON CONTROL BOARD, ) (Third- Party NPDES Perm

it DES PLAIN

ES RIVER WATERRSHED ) Appeal) ALLIANCE, PRAI

RIE RIV ERS NETWORK, ) and SIERRA CLUB, ) ) Responde nts-Appe llees. )

_____________________________________________________________________________ JUSTICE WRIGH T deliver

ed the opi nion of the

court:

_____________________________________________________________________________ The Illinois Environmental Protection Agenc y (I EPA) issued a National Pollution Dischar ge Elimi nation Sy stem (NPD ES) permi

t to the Vill age of

New L enox (New

Leno x) to faciliate the expansion of one of New Lenox’s three se wage treatment plants. Four organizations - Des Plaines River Watershed Alliance, L ivable Communities Alliance, Prairie Rivers Network, and Sierra Club (collectively Environmental Groups) - petitioned the Illinois Pollution Control Board (Board) to appea

l IEPA’s decision to grant the pe rmit. Following the hearing on the permit appeal, the Board overturned I EPA’s decision to grant the permit and remanded the permit to IEPA for additional review a s mandated by the I llinois Environmental Protection Act2

(Act) (415 ILCS 5/1 et seq. (West 2002 )) and th e Ill inois Admin istrative Code (Code ) (35 I ll. Adm. Code §§ 101.100 et seq. IEPA and New L enox (collectively appellants) f iled a direct appeal to this court challenging the finding s and order of the Board. We affirm the order of the Board. I. BACKGROUND The Village of New L enox operates two publicly owned se wage t reatmen t plants, desires to expand one existing plant that was built in 1973, and is building a third plant. The current NPDES per

mit for the

plant sch eduled f

or expansi on allows d

ischarg e flows of

efflue nt into Hickory Cree

k at an average ra

te of 1.54 million gallons per day (MGD) with a maximum discharge flow at 2.82 MGD. Hickory Creek ultimately joins the Des Plaines River. In 2002, New L enox submitted an application for a NPDES permit to expand that plant and increase the averag e discharge flow from the cur rent average 1.54 MGD limit to a new average discharg e rate of 2.55 MGD not to exceed a maximum discharge rate of 5.103 MGD. New Lenox had already

expanded this same plant once after IEPA conducted its most recent facility-re lated stream survey in 1991. Therefore, IEPA required New Le nox to conduct a new analy sis of the c

urrent w ater qua

lity and surve

y of existing a

quatic lif e curre ntly present in Hickory Cree

k at the time of the permit application. New Lenox hired Earth Tec h, Inc. (Earth Tec

h), to conduct this survey. Ea rth Tech collected five wat

er sample s on Augu st, 20, 200 2, and pe rformed a macro inverte

brate ( insect) analy sis. I n support o f its appli cation f or the NPD ES permit, New L enox submitte d the Ear th Tech study to I

EPA along with a 2002 report from Suburban L aboratories, Inc. ( Suburban Lab), analyzing two wa

ter samples collected from Hickory Creek on January 9, 2001, a nd June 15,3

2001, as evidence of the curren t levels of contaminants and metals in H ickory Creek. T he Earth Tech study and the

Suburban Lab report we

re submitted to assist IEPA in assessing the impact of the plant’s current and expanded discharge on the future water quality of Hickory Cre ek. On Januar

y 5, 2003, I

EPA tenta

tively decided to gran t New L enox the NPD ES permit to in cr ea se th e l ev el of

di sc ha rg e f

ro m i ts se wa ge tr ea tm en t p la nt in to Hi ck or y Cr ee k. Ac co rd in gl y, pursuant to section

309.109 of

Title 35 of

the Code ( 35 Ill . Adm. Code §309.109 ( amended

at 2 Ill. Reg. 16, eff. A

pril 20, 1978)), IEPA issued a public notice of this decision along with a proposed draft of the permit. IEPA then conducted a public hearing regarding this permit on April 24, 2003, with an IEPA hearing officer and other I

EPA representatives present. Mike Turley, the wa stewater treatment plant operator for Ne w Lenox, was also present and introduce d himself but chose not to comment or question others who spoke publicly during the hearing on the proposed permit. No one spoke on behalf of the Villag e of New Lenox at this hearing

. Howeve r, repr esentat ives fro m the var

ious Envir

onmental Groups a ttended, voiced th eir

concer ns, an d pres ented scien tifi c stud ies su pport ing th eir po siti ons du ring the pu blic h earing, and requested that the permit, if issued, include or reduce the proposed limits for various contaminants in the effluent discharges. They also requested that IEPA prope rly analy ze whether the incr eased di scharg e would f

urther d eterior ate the s tream’s

water qu ality and neg atively impact the

existing u ses of the

stream; examine potential alternatives and the costs of eliminating harmful chemicals from the effluent, specifica lly phosphorus and nitroge n; and require a new and valid survey of the c

urrent stream conditions be conducted in accorda nce with the published IEPA methodology

. Witnesses commented at the public hearing that they already had observed green alg al4

blooms in Hickory Creek. The Environmental Groups also stressed, during this hearing, tha t the additional phosphorus and nitrogen discharges in the incr eased discharges would aff ect dissolved oxygen conc entrations and would cause excessive algal blooms and other unna tural plant growth, which is a

lready affec ting the

quality of the str eam. The

IEPA record contains scientif ic authority and interde

partmental IEPA memoranda inva lidating New Lenox’s Earth Te ch study report c hallenging the methods an d lack of data use d to form it s conclus ions. After the public hearing, the hear ing officer set a 30-day

period for further written comments c oncerni

ng this pe rmit. 35 I

ll. Adm. Cod

e §309.11 7 (filed w

ith Secre tary of State January 1, 1978; codified 6 I ll. Reg. 8357). New Le

nox did not provide any supplemental written c omments to I

EPA. The E

nvironme ntal Grou ps did tend

er addit ional wri tten state ments and scientific studies to the IEPA hearing officer during the comment period af ter the hearing. At the close of the comment period, IEPA granted the NPDES permit to New L enox on October 31, 2003. T

he permi t as issued , modified

only the dissolv ed oxy

gen limit based on the public hearing information, but did not address any of the other concerns of the Environmental Groups. Pursuant t

o section 166.192 of

Title 35 of

the Code, IEPA

issued a 2 0-pag e “resp onsivene ss summary,” which detai led th e basi s for IEP A to i ssue t he perm it and inclu ded th e foll owing: records, data, witnesse s’ comments, criticis ms, and sug gestion s; and I

EPA’s re sponses to signific ant comme

nts

. 35 Ill. Adm. Code §166.192 (filed with Secretary of State January 1, 1978; codified 6 Ill. Reg. 8357). On December 2, 2003, the Environmental Groups filed a pe tition, pursuant to section 40(e) of the Act (415 I

LCS 5/40(e) (West 2002)), requesting the Board to review I

EPA’s decision to grant the NPDES permit and also to review the terms and c onditions of the permit.5

The Environmental Groups alleged in their petition that the permit, as issued, violated the Ac t and several Board reg

ulations, including sections 302.203, 302.205, 304.105, and 309.141(d) of Title 35 of

the I llinois Admi

nistrativ e Code. 35 Ill. Adm. Code §§ 302.203 ( amended at 14 I ll. Reg. 2899, eff. February

13, 1990), 302.205 (amended at 3 Ill. Reg . 20, eff. May 17, 1979), 304.105 (filed with Secretary of State January 1, 1978; codified 6 I ll. Reg. 8357), and 309.141(d) (amended at 27 Ill. Reg . 202, eff. December 20, 2002). Both IEPA and New L

enox requested additional discovery to be completed prior to the permit appeal hearing. Based upon a telephonic status conferenc e between the Board’s hea ring officer and the parties, the hearing officer entered orders on Mar ch 2, 2004, and April 1, 2004, directin g the pa rties to su bmit propo sed, pre

hearing , discove

ry briefing schedule s and to ad

dress th e s co pe an d r el ev an ce of an y ad di ti on al re qu es te d d is co ve ry. The Envir

onmental Groups ob

jected to the disco very

request and argued that the Board should not a

llow addit

ional disc overy

because the Act a nd applic able re gulations limited the Board’s review to the record I EPA relied upon when making the decision to issue the permit. After several continuances in the proce edings, on February 4, 2005, the Environmental Groups filed a motion for summary judg ment on their petition to

appeal t he issuan ce of the permit pending before the Boar

d. All parties submitted briefs and arguments supporting their re spective positions regarding the Environmental Groups’ motion for summary judgment. The Board denied the Environmental Groups’ motion for summary judgment in a 40- page, written order entere d on November 17, 2005, which also included the written ruling on the discovery re quests. In that order, the B oard stated, “Specifically , Section 101.516(b) of the Board’s procedural rules provides tha t, ‘[i]f the record, including pleadings, depositions, and admissions on file, together with any affidavits, shows that there is no genuine issue of material6

fact, and that the moving party is entitled to judgment as a matter of law, the Board will enter summary judgme

nt.’ 35 Ill. Adm. Code [§]101.516(b).” The hearing of ficer further stated in that order, “Considering the pleadings strictly against the petitioners [Environmental Groups], the Board cannot conclude that there is no g enuine issue of material fact with rega rd to the issue of nutrient loadings[,] *** the issue of the narrative offensive conditions standard[, and] *** the issue of the copper water quality standard.” The Board also denied Ne w Lenox’s and I

EPA’s request for additional discovery , noting that the Act provides that “the hearing w ill be based exclusively on the record be fore the Agency [IEPA] at the time the permit or decision was issued.” See 415 IL CS 5/40(e)(3) (West 2002). On April 1 9, 2007, th e Boar d issued a 51-pag e opinion a

nd order remandi ng the p ermit to IEPA for addi tional re view con sistent wit

h their or der. The Board s tated: “Clearly, pe

titioners [Environmental Groups] bear the burden of proof and the Board reviews the record to de termine if the issuance of the permit violated the Act or Board regulations. Fur ther the Board reviews the entire r ecord and is not limited to the IEPA’s reasoning or f acts discussed by the I

EPA.” The Boa rd agr eed that the Envir omental G

roups dem

onstrate d: “IEPA failed to properly

consider the effect of the increa sed discharge from the New L enox plant on Hickor y Cr eek. Spe cifical ly, the I EPA faile d to prope rly review t he incre ased disc

harge pursuant to 35 I ll. Adm. Cod

e 302.105 (c) and

as a result the issuance of the permit violates 35 I ll. Adm. Code 302.105(c) and Section 39 of the Act (415 ILCS 5/39 ([West] 2004)).” The Board noted: “The record establishes that the increase d loading of nutrients may degrade the7

stream and the IEPA did not consider the impac t of increased loading of phosphorus and nitrogen on the receiving stre am. Further, the record does not support the IEPA’s determinations that the water quality standards for of

fensive conditions[,] dissolved oxygen, pH, and copper will not be violated based on the increased loading to the stream. The B oard also finds that the record does not demonstr ate that e xisting use s will be pr

otected given the incre ase in dis charg e to Hickory Cree

k.” Another Board f inding c oncluded : “IEPA did not de

monstrate that the lowering

of water quality of Hicko ry

Creek is necessary to accomplish important economic or social development in the area where the stream is located ( see 35 Ill. Adm. Code 302.105(c)(1)).” As a result, the Board remanded the pe rmit to IEPA for additional review pursuant to the antideg radatio n provisions of the B oard’s r ules (35 I ll. Adm. Cod

e §302.10 5 (amend

ed at 27 I ll. Reg. 166, eff. December 20, 2002) ) and consistent with its opinion and order. IEPA and New Leno x filed motio ns to rec onsider a nd the Bo ard deni ed those m otions in an order entere d on July

12, 2007. A s a resul

t, IEPA and Ne

w Le nox filed a

direct a ppeal to t his court, pursuant to Supreme Court Rule 335 (172 Ill. 2d R. 335), challeng ing the Board’s decision regarding the NPDES permit at issue. Additional facts will be incorporated as necessary in the analysis of the issues below. II. AN ALYS IS A. The Pe

rmit Proce ss IEPA and the B oard ea

ch have distinct r oles in the

issuing o f NPDES or

other pe rmits in Illinois. IEPA is authorized by statute to issue NPDES permits. 415 ILCS 5/39 (West 2002).8

However, the Board

regulates the standards and proce dures that must be met before IEPA may approve various p ermits und er the Ac t. 415 I LCS 5/1 3(b) (We st 2002). Pu rsuant to this authority under se ction 13(

b) of the Act, the B oard has

established speci fic reg

ulations se

t forth in the Illinois Administrative Code to preserve the integ rity of bodies of wa

ter in Illinois affected by I EPA’s issuance of

a NPDES pe

rmit. See 3 5 Ill. Adm. Code § §309.108 ( amended at 28 I ll. Reg. 7310, eff. May

7, 2004), 309.109 (amended at 2 Ill. Reg . 16, eff. April 20, 1978), 309.115 (filed with Secretary

of State January 1, 1978; codified 6 I ll. Reg. 8357), 309.119 (amended at 28 Ill. Reg. 7310, eff. Ma

y 7, 2004); Prairie Ri

vers Netw ork v. Po llution Cont

rol Board , 335 I ll. App. 3d 391, 401 (2002). IEPA must comply

with the Environmental Protection Act (415 ILCS 5/1 et seq. (West 2002)) a nd the I llinois Pollu

tion Contro l Board ’s gene ral wate r quality regula tions (35 I

ll. Adm. Code §302.101 et seq .) to protect and maintain water quality standards in this state before issuing a NPDES permit. As counsel for IEPA ar gued before this court, I

EPA is essentially the “gate keeper of assur ing cle an wate

r in I llinois” by

assuring that any permit iss

ued will no t cause a violation of the Act or the administrative regulations. Under se ction 39( a) of the Act, “[I ]t shall be t

he duty of the [I EPA] to issue

such a pe rmit upon proof by the applicant that the facility, equipmen t, vehicl e, vesse l, or airc

raft will not cau

se a violation

of this Act o r of regula tions hereunder. ” (Empha sis added .) 415 I LCS 5/3 9(a) (We st 2002). Section 39(b) states IEPA may issue NPDES permits to allow the discharge of contaminants “from point sources into navigable waters.” 415 IL CS 5/39(b) (West 2002). As a further procedure to ensure that IEPA has met its duty to protect water quality , the Act allows interested third parties to appeal the I EPA’s issuance of a NPDES permit. Section 40(e)(1) of the Act states, “I f [IEPA] grants or denies a per mit under subsection (b) of Section 399

of this Act, a third party *** ma y petition the Boar

d within 35 days from the date of issuance of the Age ncy's decision, for a hearing to contest the dec ision of the Agency .” 415 IL CS 5/40(e)(1) (West 2002) . In the i nstan t case, the En viron menta l Grou ps pro perly fil ed a th ird pa rty chall enge of IEPA’s decision to issue the NPDES permit allowing Ne w Lenox to expand the wastewater treatment plant at issue. B. Burdens of Proof 1. The permit applicant’s burden IEPA, as gateke eper, must assure that the impact of a requested pe rmit will not violate the standards of the federal Clean Water Act of 1977 ( 33 U.S.C. §1251 et seq. (2000)) before issuing a NPDES pe

rmit. “‘I llinois has

specific regula tions setti ng fort h the proc edures [the IEPA] must follow in issuing an NPDES permit. See 35 Ill. Adm. Code [§§] 309.108, 309.109, 309.115, and 309.119.’” Prairie Ri

vers Netw ork , 335 I ll. App. 3d

at 401. To

comply with these

mandate s, “[t]he appl ication f

or an NPD ES permit must contain s ufficie nt informa

tion for the IEPA to determine that the proposed discharge will be in complianc e with all State and Federal requirements.” (Emphasis added.) E S G W atts, Inc . v. Pollut

ion Control B oard

, 224 Ill. App. 3d 592, 595 (1992), citing 35 Ill. Adm. Code §309.103 (1985). I f IEPA does not require this proof from the permit applicant, IEPA has not complied with its own duties under the Act. 2. Enviromental Groups’ burden and the scope of the B oard’s review It is w ell settle d by

the Boa rd and I llinois cou

rts that I EPA's de cision to is sue a per mit must be supported by “substantial evidenc e.” Prairie Rivers Network v. Environmental Protection Agency , Ill. Pollution Control Bd. Op. 01-112, at 7 (August 9, 2001) (Black Beauty Coal ). Even though a decision to issue a permit by IEPA must be supported by substantial evidence, this does not, however, shift the burden away from the petitioners (Environmental10

Groups), who alone bear the burden in their appe al before the Board to prove that the pe rmit, as issued, vi olated e ither the Act and/or the Bo ard’s r

egulat ions. 415 I

LCS 5/4 0(e)(3 ) (West 200 2); Black Beauty Coal , slip. op. a t 7; Village of Lake Barrington v. Environmental Protection Agency, Ill. Po llution Cont rol Bd. O p. 05-5, a t 5 (April 21, 2005) ; E S G Watts, Inc. , 224 Ill. App. 3d at 595; Prairie Ri

vers Netw ork , 335 Ill. App. 3d at 401. Importantly , section 40(a)(1) of the Act state s: “If , howeve r, the Ag ency

[IEPA] is sues an N

PDES permi

t that impos es limits which are based upon a criterion *** then the Ag ency [I EPA] shall have the burden of going forwar

d with the basis for the derivation of those limits or criterion which were derived under the Board's rules.” 415 I

LCS 5/40(a)(1) (West 2002). Appellan ts argu e that the Board d id not req uire the Environme

ntal Grou ps to esta blish with certainty that the pe

rmit would violate the Act and Code. Consequently, a ppellants claim that the Board misapplied the burden of proof by making IEPA justify

the terms and conditions incorporated into the permit. We disagree. The Board must review the entire rec ord relied upon by I EPA to determine whether the third party has shown that I EPA failed to comply with criter ia set forth in the applicable statutes and reg ulations b efore i ssuing or deny ing the N PDES permi

t. 415 I LCS 5/4 0(a)(1 ), (d) (

West 2002); Prairie Ri

vers Netw ork , 335 Ill. App. 3d at 401. Here, all par ties acknowledge that the Environmental Groups carried the burden befor e the Board. However, we conclude that the third parties in this case met their burden of proof before the Board by

demonstrating that IEPA failed to require sufficient evidence to assure the wate r quality of Hicko ry

Creek wo

uld not det

eriora te further by e

xceeding the regulatory

narrative and numeric standards as a r esult of the plant11

expansion. 3. Appellate standard of review This court has held that an application for a NPDES permit must contain “sufficient informat ion for th e IEPA to dete

rmine tha t the prop osed discharge

will be in c omplianc e with all State and Federal requirements.” E S G Watts, Inc. , 224 I ll. App. 3d at 595, ci ting 35 I ll. Adm. Code §309.103 (1985). We review the Board’s finding s and order remanding the permit as issued to IEPA, solely

on the evidence in the IEPA re cord , to determine whether the Board’s findings were contrary

to the manifest weight of the evidence. Environmental Protection Agency v. Polluti on Control B oard

, 115 Ill. 2d 65, 69-70 (1986); 415 I LCS 5/41(b) (West 2006). This court has observed, “When reviewing a de cision of the Illinois Pollution Control Board, the court's function is not to reweig h the evidence or make an independent asse ssment of the facts.” E S G Watts, Inc. v. Pollution Control Board, 286 Ill. App. 3d 325, 330 (1997). Therefore, to meet the manifest weig ht of the evidence standard, the Board’ s decision will be upheld on appeal when “any evidence in the record fairly supports the action taken by a n administrative agency .” E S G Watts, 286 Ill. App. 3 d at 33 0, cit ing Farmers State Bank of McNabb v

. Departm ent of Emp loyment S ecurity , 216 I ll. App. 3d

633 (1991 ). Other

Illinois courts have consistently a pplied this manifest weight of the evidence standard whe n reviewing Board decisions of permit appeals. See Environmental Protection Agency v. Jersey Sanitation Corp ., 336 I ll. App. 3d

582, 589 ( 2003); Browning-Ferris Industries of Illinois, Inc. v. Pollution Control Boa rd , 179 Ill. App. 3d 598, 602 (1989); Joliet Sand & G ravel Co. v. Pollution Control Board , 163 Ill. App. 3d 830, 834 (1987). In this case, the Boa

rd found that the Environmental Groups were correct a nd the record did not con

tain suff icient ev idence t o support I

EPA’s dec ision that t

he permi t, as issue d, would not cause a violation of the Act and Board re gulations. Consequently, we must determine12

whether this finding by

the Board was supported by the record. Prairie Ri

vers Netw ork , 335 I ll. App. 3d at

401; Black Beauty Coal , slip op. at 8; 415 ILCS 5/39(a) ( West 2004). 4. The Boa rd’s Fi ndin gs The Boa rd, in its op inion and order, f ound that I

EPA did not r

eceive sufficie nt data concerning the increased pollutants and c onsequently did not properly assess the impact of the increased pollutant loading from the expanded plant as require d by the Act (415 IL CS 5/1 et seq. (West 2004)) and the Illinois Pollution Control Board’s regula tions (35 Ill. Adm. Code §302.101 et seq .). The Board remanded the per mit for further analy sis of four areas required by the administrative regulations. The remand require d the IEPA to conduct an antideg radation assessment that (1) addressed whether the NPDES permit was ne cessary ; (2) assured that the water quality would not be diminished below r egulatory standards ; (3) protected existing uses of the stream; and (4) considered all technically and economically

reasonable measures to avoid or minimize the extent of the pollutant loading on the stream. 35 Ill. Adm. Code §§302.105(a), (c)(1), (c)(2), (f) ( amended at 27 Ill. Reg . 166, eff. December 20, 2002). We wi ll ad dr es s e ac h c on ce rn se pa ra te ly. a. Neces sity The Board

found that the IEPA antidegra dation assessment, included in the record, did not demonstr ate that the increased loading was “necessary to a ccommodate important economic or social development” as required by regulations. 35 Ill . Adm. Code §302.105( c)(1) ( amended at 27 I ll. Reg. 166, eff. December 20, 2002). In their “responsiveness summary ,” the Board f

ound that I

EPA concluded

that the expansion wa s necess ary to accom modate f uture g rowth , but the record did not contain data showing that the increased discharg e was unavoidable or nec essary . The re cord als o did n ot con tain a ny facts o r analyses discu ssin g other feasible alternatives which might negate the13

necessi ty of increasing the discharg e into Hickory Cree k. Nor did the IEPA record c on tai n informationthat revealed IEPA e valuated the possibility of other methods to eliminate or re duce phosphorus and/or nitr ogen from the effluent before discharging the waste wate r into the stream thereby minimizing

harmful p ollutants. The Board found that, without this assessment of “n ec es si ty” for the increased discharg e levels of contaminants, IEPA fa iled to follow the require ments of section 302.105(c)(1) to determine that impor

tant socia l or econ omic development necessitated

lowering the quality

of the wa ter. See 35 Ill

. Adm. Code §302.105(c)(1) (amended at 27 Ill. Reg. 166, eff. D ecember 20, 2002). We conclude that the Board’s finding as to a violation of this section is not contrary to the manife st weight of the evidence. b. Effects of Increased Discharge for Phosphorus, Nitrogen, Dissolved Oxygen, pH, and Copper Sections 302.105(c)(2)(A) and (B)( i) require IEPA to “conside r the fate and effect

of any parameters proposed for an incre ased pollutant loading” and “ [a]ssure [that the] a pplicabl e numeric or narrative water quality standard will not be exceeded as a result of the proposed activity.” (Emphasis adde d.) 35 Ill. Adm. Code §302.105(c)(2)( A), (c)(2)(B)(i) (a

mended at 27 Ill. Re g. 166, e ff. Dec ember 20 , 2002). T he Boar d determ ined the r ecord showed tha

t IEPA issuance of the pe rmit viola ted sect ion 302.10 5(c)(2 )(B)( i) of Title 35 of the C ode bec ause I EPA did not assure that the water quality standards for certain contaminants would not be exceeded a s a result of granting the permit for the proposed expansion. 35 Ill. Adm. Code §302.105(c)(2)(B)(i) (ame nded at 27 Ill. Reg. 166, ef f. December 20, 2002). I n fact, the Board found that t he reco rd sho wed evi dence t hat th e incre ased l oadin g would cause or contribu te to violations of the wa ter qual ity s tandard s for off ensive c onditions r

elated to phosphor

ous, nitrogen, dissolved oxyge n, pH, and algal bloom levels in the stream.14

The Board specifically

noted that neither New Le nox’s application for the permit nor IEPA’s antidegra

dation assessment identified or quantified the potential impacts of the increased phosphorus and nitrogen loading on the stream as r equired by the r

egulations. The record contained witness statements and scientific studies that established that there alrea dy were algal blooms in Hi ckory

Creek a nd that inc

reased phosphor us and nitr

ogen in the disch arge c ould accelerate the numbers of off ensive algal blooms and further contribute to violations of those water quality standa

rds. 35 Ill. Adm. Code §302.203 (amended at 14 I ll. Reg. 2899, eff. February 13, 1990). The Boa rd noted t hat I EPA listed H ickory

Creek on its 2002 list

of “impa

ired stre ams” for nitrogen, phosphorus, total suspended solids, and other paramete rs. The Board found the record showe d that IEPA did noth ing to asses s or ev aluat e the i mpact of an i ncreas ed dis charge of nutrient loadings on the stream’s algal ac tivity to assure the narra

tive water quality standa

rds could be maintained, thus violating section 302.105(c)(2)(B)(i) of the Code. 35 Ill. Adm. Code §302.105( c)(2)(

B)(I ) (amen ded at 27 I

ll. Reg. 166, eff

. Decem ber 20, 2 002). Alth

ough the se algal blooms were already present in Hickory

Creek, the Board found that the evidence in record was insufficient to determine whether the blooms resulted from the wa ste water discharged from the New Lenox plant, or from some other sourc e. In their antidegr

adation assessment, IEPA concluded tha t the expansion would not exacerbate the existing algae problems in Hickory Creek due to increased nutrient loading. However, the Board found the re cord devoid of evidence to support this conclusion. I n fact, the Board d etermine d the rec ord conta ined evid ence tha t the exce ssive and

offensi ve alga l blooms

were a lready present in Hickor

y Cr eek and the I EPA permi

t failed t o set any limits for phosphorus as established by re gulations, which the IEPA re cord shows, could further enhance15

the proliferation of algae. 35 I ll. Adm. Code §302.105(c)(2)(B)(i) (amende d at 27 Ill. Reg. 166, eff. December 20, 2002). The Boa rd noted t he I EPA antide grada

tion asse ssment indi cated I EPA decli

ned to develop specific restricted limits for the nutrient loading in the dischar ge because “development for wate r quality standar ds for nut rients is progre ssing as

fast as r esource s allow an

d resea rch is being conducted.” I

EPA indicated that the “standards for phosphorus sources could be a nother four or five y

ears away ” but “standards for phosphorus will be adopted once the basic na ture of phosphorus in various streams is understood.” Emphasizing that Hickory Creek phosphorus and nitrogen levels must be assesse d by IEPA , the Board rejected these finding s that limits for phosphorus and nitrogen could not be accurate ly delineated within the per mit. In fact, section 302.205 of

Title 35 of

the Code a

lready designa ted a limit f

or phosphorus conc entrations. 35 I ll. Adm. Code §302.205 ( amended at 3 Ill. Reg . 20, eff. May 17, 1979 ). Moreover, the Board found the rec ord showed that the concentrations of dissolved oxygen and pH c an be directly related to concentrations of algal blooms in a strea m. The Board determined that, although IEPA established effluent limits for dissolved oxygen and pH in the proposed permit ba sed upon the curre nt discha rge ra te, the r ecord showed no e

vidence that IEPA considered the effects of the additional nutrient loading from the increased discharge allowed by the new permit to assure that the numeric standards for dissolved oxy gen and pH would not be exceeded. Therefore, the Board found the permit, as issued, did not assure that the increased discharge would not result in violations of the dissolved oxyg en or pH standards in violation of secti on 302 .105( c)(2)( B)(i). 35 Ill. A dm. C ode §3 02.10 5(c)(2 )(B)(i ) (amen ded at 27 Ill. R eg. 166, eff. December 20, 2002). The IEPA record includ

es a rep ort from Su

burban Laboratories, I

nc, which relied

on data16

from two water samples from Hickory Creek, collected on January 9, 2001, and June 15, 2001, to deter mine ave rage c oncentr

ations fo r copper

in the stre am. I EPA deter mined tha t permit limits for copper were not necessary because the averagecopper level of these two samples was substantially less than the reg ulation’s maximum or chronic water quality standa rd for copper. 35 Ill . Adm. Code

§302.208 ( amended

at 27 I ll. Reg. 166, eff

. Decem ber 20, 2 002). I

EPA concluded that the increased discharg e of wastewater would not cause the chr onic standards for copper limits in Hickory Cree k to be exceeded. Without determining the source of the copper concentrations in the water samples, I EPA concluded that New Le nox’s plant was a low risk for high levels of metal concentrations because “wastewater treatment plants ge nerally do not discharge metal concentrations and be cause New Le nox has no known source of copper.” The Board expressed concern that I EPA relied on limited copper sampling data, especia lly when one sample contained copper levels appr oximately equaling the maximum copper water quality standa rd. The Board noted that the record showe d IEPA did not use the United Sta

tes Envir onmental Protection Agenc

y ( USEPA) method for e

valuatin g the re asonable potential to exceed water quality standards for copper because that method c alled for using more than two sa

mples. The

Board f ound that t

he evide nce in the record showed th at IE

PA reached its conclusion that the New Lenox plant would not discharg e excessive copper concentrations without first acquiring adequate water sa mples or performing a proper “r easonable potential analysis.” I

n fact, the Board further conc luded that, applying the USEPA reasonable potential analysis to the two water

samples collected, the results indicated a reasonable pote ntial to exceed the chronic wate

r quality standar d for cop per. 35 I ll. Adm. Cod

e §302.20 8 (amend

ed at 27 I ll. Reg. 166, eff. December 20, 2002)

. The rec ord showe d that increased nutrient l oading

gener ally would af

fect the numeric17

water quality standa

rds for phosphorus, nitrogen, dissolved oxyg en, and pH and could affect the narrative quality

standards for algae. The re cord also showed that one of the two water samples tested for copper was already very close

to equaling the chronic standard without determining the source of these high copper conc entrations. Noting that the IEPA antideg radation assessment did n ot add ress t he inc reased disch arge by pred icti ng how the increased discharge would affect these sta ndards se t by regula tions, the Board c oncluded

the gat hering of data d uring th e permit process was incomplete. Thus, the Board conc luded that IEPA did not have “sufficient information” to determine that the numeric and narrative water quality standa rds would not be violated with the expansion of the wastewater treatment plant. Based upon the se findings, the Board determined that this permit, as issued, violated sections 302.105(c)(2) (A) and 302.105( c)(2)(

B)(i) o f Title 35 of the Cod e. 35 I ll. Adm. Cod

e §§302.1 05(c)( 2)(A), ( c)(2)( B)(i) (amende d at 27 I ll. Reg. 166, eff . Decem ber 20, 2 002). We c onclude t hat the B oard’s f

indings i n this regard were not ag ainst the manifest weight of the evidence. c. Existing Uses The Board noted, on page 38 of its order, “that one of the most important tenets of the antidegradation regulations is the protection of the existing uses of all waters of the State.” The Code requires that, before I EPA issues a permit allowing increased discharg e, IEPA must assure that all existing uses of the stream are both maintained and protected. 35 I ll. Adm. Code §§302.105(a), (c)(2)(B)( ii) (amended at 27 Ill. Reg . 166, eff. December 20, 2002). The B oard specifically f

ound the record lacked evidence a ssessing how the increased discharg e of effluent from the water tre atment pla nt would ma

intain and protec t the existin g uses o f the stre am, including the aquatic life in the stream. Bob Mosher, an IEPA “ Water Quality Standards Unit” e mployee supporting

the issuance18

of the pe rmit, comm ented at

the public

hearing about the IEPA antideg radatio n assessm ent, stati ng: “We relied on really two main pieces of information, one of which was the 2002 [Earth Tech] macroinvertebrate [insect] study sponsored by the Villag e [New Lenox]. That study indica ted that there wasn’t an impact to macroinvertebra tes downstream of the existing New Le nox plant versus upstream.” He also said the other piece of information they relied upon was from the IE PA biologist who made the decision to put Hickory Creek on the list of impaired streams in 2002. The record shows, through copies of I EPA interoffice memoranda, that this Earth Tech study was highly

criticized internally by

other IEPA employ

ees. One memorandum stated that the colle ction methods used b y Ea rth Tech were no t in complia

nce with t he I EPA 1994 “ Quality Assurance and F ield Metho ds Manual ,” thus ma king it “ difficul

t to judge the valid ity o f the Ear

th Tech stud y.” The memo f

urther s tated tha

t Earth Te ch used d

iffere nt collection method s, differe nt taxon tole

rant val ues, and differe nt criter ia for int erpret ing “MB I” (

macroin vertebr ate biot ic ind ex) s cores f

rom th ose typic ally used by IEPA, and the rep ort di d not conta in eno ugh specific information on “habitat, water chemistry , and flow.” Another memorandum concerning the Eart h Tech stu

dy s tated: “The mac roinver tebrate memo pre

pared by Earth Te ch is one o f the poor est stud ies I hav e seen i n a whi le. Th ey did not follo w IEPA co llect ion m ethod ology and they used a

combination of Hillsenhoff (1987) tolerances (0-10 scale ) and IEPA family

level tolerances (0-11 scale). They identified organisms down to the genus level so they

should have used IEPA ge nera tolerances.” Some of these memoranda also recommended that I EPA require Earth Tech to conduct a new19

study in compliance with I EPA standards and methodology

. In spite of this evidence in the rec ord, IEPA relied heavily on this questionably invalid and unreliable Earth Tech study . Other than the limited Earth Tech macroinvertebra te study of insects, the Board found that the I EPA record did not contain evidence of any current study of

the existing aquatic communities or how the increased discharg e will affect those communities. The Board n oted that the rec ord conta

ined evid ence tha t Hickory Creek su pported a “divers e assemblage of fish species,” but nothing in the r ecord demonstrated that the aquatic wildlife of Hickory Cree

k would not be harmed by this incre ase in nutrient loading in the creek. In respect to the existing uses issue, the B oard found IEPA violated sections 302.105(a ) and 302.1 05(c)( 2)(B)( ii) of Titl e 35 of the Code. 35 I

ll. Adm. Cod

e §§302.1 05(a), ( c)(2)(

B)(ii) (amended at 27 Ill. Reg . 166, eff. December 20, 2002). Ba sed upon our review of the record, this finding was not contrary to the manifest weight of the evidence. d. Reasonable Measures The Board further found that the re gulations required that the IEPA antidegradation assessment must assure that “[a]ll technically and e conomically rea sonable alternatives are incorporated into the proposed expansion to avoid or minimize the proposed increase of pollutant loadi ng int o a str eam.” S ee 35 Ill . Adm. Code § 302.1 05(c)( 2)(B)(i ii) (a mende d at 27 Ill. Reg. 166, eff. December 20, 2002). Although the record shows that IEPA consider ed one general cost estimate to show the fea sibility of using a land ma

nageme nt progr am as an a

lternati ve to expanding the present wastewater trea tment plant, this cost estimate was a part of the discredited Earth Tech study

. Furthermore, a witness at the public hearing presented evidence that the costs for a land manage ment plan t, rathe r than a w astewat

er trea tment sy stem, woul d be simila

r to those20

associated with the expansion of the wastewater plant. The Boa rd found that record and the IEPA assessment did not address any other alternatives or technologies to minimize the increased pollutant loading into Hickory Cre ek. Additionally, the Boa rd stated that nothing in the record showed that IEPA considered the c osts or technology available to remove phosphorus and nitrogen from the effluent before it was discharged into Hickory Creek or even addressed any other alternatives. As a result, the Board found tha t IEPA issued the permit in violation of section 3 02.105(c )(2)(B )(iii) of Title 35 of

the Code. 35 Il. Adm. Code § 302.105( c)(2)( B)(iii) (amended at 27 Ill. Reg . 166, eff. December 20, 2002). Ba sed upon our review of the record, we determine that this finding of the Board was not ag ainst the manifest weight of the evidence. As to all of

these issu

es, the B oard fou

nd the Environmenta

l Groups su stained their burden of proof during the hearing demonstrating that the permit, as issued, violated the aforem entioned

sections of the re gulations and, c onseque ntly , section

39 of the Act. 415 I

LCS 5/39 (West 2004). Based on our careful review of the record, we conclude that none of the Board’s findings were contr ary to the manife st weight of the evidence. II I. Ne w Le nox’s Discovery

Requests a

nd Due Pro cess The applicable standard of review for rulings on discovery

issues is the abuse of discretion standard. Wisniewski v. Kownacki , 221 Ill. 2d 453, 457 (2006). I t should be noted that only New Lenox has raised this issue on appeal to this court. Deny ing appellants’ request for discover y, t he Boar d found tha

t the Act a

nd the Bo ard’s pr

ocedura l rules ma ndated th e Boar

d to conduct the permit appeal hearing “exclusively on the record before the Ag ency [I EPA] at the time the permit or decision was issued.” 415 IL CS 5/40(e)(3) (West 2006); 35 Ill. Adm. Code §105.214(a) (amended at 29 I ll. Reg. 8811, eff. June 8, 2005). Therefore, we a gree the Board could not p roperl y conside r addi tion al evi dence o r test imon y that mi ght be d isclo sed th rough21

additiona l discove ry , and conclude the

Board d id not abus e its discr

etion in de

nyi ng the r equests for additional discovery . See Alton Packaging Corp. v. Pollution Control Board, 162 Ill. App. 3d 731, 738-739 (1987).

IV. Summary

Judgment Ruling and the Final Order Appellants contend that the Board’s denial of the Environmenta l Groups’ motion for summary judgme

nt is inconsistent with the ultimate conclusions in its final 51-page opinion and order. Si nce the B oard did n

ot gran t summary

judgmen t in favor of the Env

ironmenta

l Groups, and it did n

ot rece ive addit

ional evi dence d

uring th e administ

rative h earing

on the per

mit appea l, appe llant s con

tend the E nvironmen

tal G roup s cou ld not have met th eir burde

n of p roof

. We conclude that appe llants’ po sition that a ruling on summar

y ju dgment should pre dict the o utcome of the hearing on the merits of a case is erroneous. The Code details the legal standard the Boa rd must use in motions for summary judgment by stati ng: “If the rec ord, including pleadings, depositions and admissions on file, together with any aff

idavits, shows that there is no genuine issue of material fact, a nd that the moving party

is entitled to judgment as a matter of law, the Board will enter summary judgmen t.” 35 I ll. Adm. Cod

e §101.51 6 (filed w

ith Secre tary of State January 1, 1978; codified 6 I ll. Reg. 8357). This is the same standard used in trial court proceedings in I llinois. See 735 ILCS 5/2-1005(c) (West 2006 ); Dowd & Dowd, Ltd. v. Gleason , 181 Ill. 2d 460, 483 (1998). When rulin

g on a mo tion for su

mmary judgmen t, pleadi ngs, de positions, and aff

idavits must be considered “strictly against the movant and in favor of the opposing pa rty.” Dowd

, 181 Ill. 2 d at 483. T

he purpo se of summa

ry judgmen t is not to tr

y a question o f fact, but rathe r to determine whethe

r a gen uine ques tion of mat

erial fa ct exists. Bagent v. Blessing Care Corp. , 224 I ll. 2d 154, 1 62 (2007) . Our supr eme cour t has held :22

“Althoug h summary

judgmen t can aid in the expe ditious disp osition of a lawsuit, it remains a drastic means of disposing of litigation and, there fore, should be allowed only wher

e the right of the moving party is clear and free from doubt.” Bagent , 224 Ill. 2d at 163. The Boa rd applie d these st

andards and denie d the motion

for summa

ry judgmen t finding that, upon considering the record and plea dings strictly ag ainst the Environmental Groups and in favor of IEPA and New Lenox, there existed genuine issues of material fact reg arding the issues of nutrient loading, the narrative offensive c onditions water quality standard, a nd the copper water quality standard. We ag

ree that the motion for summary judgment was properly

denied by the Board. Where summary judg ment is denied, the case proceeds to a hear ing and a final judgment on the merits of the case and questions of fact must be resolved by the Board. Town &

Country Utilities, Inc. v. Illinois Pollution Control Board, 225 I ll. 2d 103, 1 18 (2007) . The Act states, “After due consideration of the written and ora l statements, the testimony and arg uments that shall be submitted at the hearing, *** the Board shall issue and e nter such final order, or make such fina l determi nation, a s it shall de em appro priate u nder the circumst ances.” 415 I LCS 5/33(a) (West 2006). A final judgment has been define d as “a determination by the court on the issues presented by the

pleadings which ascertains and fixes absolutely and finally the rig

hts of the parties in the lawsuit.” Flores v. Dugan , 91 Ill. 2d 108, 112 (1982). At the final hearing on the merits, the Board is not called upon to review the evidenc e in a light most favorable to either party, but must balance

and weigh the evidence in a neutra l context to make its final determination or ju

dgment. In the instant case, the B oard had very different legal standards to apply when ruling on the motion for summary judg ment and deciding the merits of the case. I n making its final determinations in its opinion and order, the Board resolved the questions of materia l fact based upon the evidence in the record. There fore, we conclude that the Boar d’s decision to deny summary judgme

nt in favor of the Environmental Groups was not irreconcilable w ith its final23

decision to negate IEPA’s issuance of the New L enox permit and remand it for further evaluation. V. CONCLUSI ON After c onducting

a thoroug

h and inde

pendent r eview of the rec ord, we c onclude t here is substantial evidence in the IEPA rec ord illustrating that IEPA neg lected to properly consider the regulatory

standards prohibiting the degradation of I llinois waters set forth in section 302.105 of Title 35 of the Code. 35 Ill. Adm. Code §302.105 (amended at 27 I ll. Reg. 166, eff. December 20, 2002) . There fore, th e recor d supports

the action taken by

the Boa rd to rema

nd the per mit back to IEPA for furthe

r review of those standards. We further find that the B oard’s decision denying discovery in the instant ca se was not an abuse of discretion. Finally, the Board’s ruling on summary judgme

nt was not inconsistent with its ruling on the merits of the case. For the reasons stated, we affirm the Pollution Control Board’s decision. Affirmed. CARTER and SCHMIDT, JJ., concur.