ILLINOIS POLLUTION CONTROL BOARD
April 12, 1990
IN THE MATTER OF:
PROPOSED AMENDMENT TO
)
R87-6
PHOSPHORUS EFFLUENT STANDARD,
)
(Rulemaking)
35 ILL. ADM. CODE 304.123
ADOPTED RULE. FINAL ORDER.
OPINION AND ORDER OF THE BOARD (by J. Anderson):
This rulemaking was initiated by the Illinois Environmental
Protection Agency (Agency) on March 20, 1987. The Agency filed
an amended proposal on July 13, 1987. Merit hearings on the
Agency’s proposal were held in Chicago on May 18, 1987, and in
Springfield on July 21, 1987. Beside the Agency, the
Northeastern Illinois Planning Commission (NIPC), the Department
of Energy and Natural Resources (DENR), the Urbana and Champaign
Sanitary District (U—C Sanitary District), and members of the
public participated in the hearings.
Following completion of the merit hearings, DENR, with the
concurrence of the Economic Technical Advisory Committee (ETAC),
determined that an Economic Impact Study (EcIS) was warranted in
this proceeding. On March 31, 1988, an EcIS report prepared on
behalf of DENR by Blaser, Zeni and Co., a management consulting
firm, was filed with the Board (Exh. 40). On April 7, 1988, the
Board adopted the Agency’s proposal for First Notice. This First
Notice appeared in the Illinois Register on April 29, 1988.
Upon receipt of the EcIS report, the Board scheduled and
conducted two additional public hearings to consider the EcIS.
Present at these hearings were DENR, the Agency, and William L.
Blaser, President of Blaser, Zeni and Co. and the principal
author of the ECIS report. Some other members of the EcIS
drafting team were also present. Hearings were held on June 7,
1988, in Springfield, and on June 21, 1988, in Chicago.
On December 15, 1988, the Board adopted for Second Notice a
Proposed Opinion and Order in this matter. Since the Second
Notice proposal differed in certain respects from the Agency-
drafted First Notice proposal, the Board deferred filing of the
proposal to allow interested participants an opportunity to
comment. On January 5, 1989, in order to correct a drafting
error in the December 15, 1988 Order, the Board ~adopted a
Correction of Proposed Order of the Board.
Five public comments (Nos. 12-16) were received in response
to the Board’s Second Notice Proposal. Public Comment 15 was
llfl—1fl3
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filed by the Agency. In response to questions from the Board’s
staff requesting clarification of the intent and effect of
certain of the Agency’s comments, the Agency filed Supplemental
Agency Final Comments on March 9, 1989. (Public Comment 17).
Because no rule can be adopted more than one year after the
date of publication of First Notice (Ill. Rev. Stat. 1987, Ch.
127, par. 1001 et seq., par. 1005.01(d)), it was necessary to
return this proceeding to First Notice. On May 11, 1989, the
Board adopted a Second First Notice proposed Opinion and Order,
which was subsequently corrected on May 25, 1989. The Board also
utilized the necessity for the Second First Notice period to
afford the participants additional time to consider this
rulemaking in light of the changes proposed by the Board (see
following). Additionally, the Board concluded that at least one
more hearing in this docket would be advisable in view of the
continuing problems posed by the record.
The Second First Notice embodied the Agency’s original
proposal together with the modifications proposed by the Board in
its deferred Second Notice proposal of December 15, 1988, as more
fully set forth below. A merit hearing to consider the modified
proposal was held in Chicago on June 23, 1989. Participants at
this third merit hearing (fifth overall), besides the Agency,
were DENR, the City of Charleston (Charleston), Dr. Harish Rao,
Chief of the Board’s Scientific and Technical Section (STS), and
Mr. Robert Kirschner, Manager of the NIPC lakes program, who
appeared on behalf of the Illinois Lake Management Association
(ILMA) as its vice—president and the North American Lake
Management Society (NAL~MS) as its secretary. At the hearing, ten
additional exhibits (Exhs. 50—58 and 60) were received into
evidence.
*
The Board’s Modified Proposal (Second First Notice)
As more fully described in the Board’s Opinion of May 11,
1989, the Board, after consideration of the record then available
to it, found sufficient support for the Agency’s proposal to the
extent that it would impose a 1.0 rng/l effluent phosphorus as P
standard upon all point sources of 2500 population equivalents
(P.E.) or more located within 25 miles of a 20—acre or larger
lake or reservoir. Current requirements impose this effluent
standard upon somewhat smaller (1500 P.E. or larger) sources that
discharge within the Fox River Basin or that (without utilizing a
third—stage lagoon treatment system) discharge directly to a lake
or reservoir that does not comply with the general use water
quality standard for phosphorus (35 Ill. Adm. Code 302.205), and
to somewhat larger (5000 P.E. or larger) sources elsewhere
(separate standards for the Lake Michigan basin are not
*
One other exhibit (Exh. 59), consisting of the Illinois Water
Quality Report for 1980—1987 (also kno-.;n as the 3058 report) was
to have been submitted, but was not received.
11fl—1ft1~
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affected). The Board also accepted the Agency’s proposal to the
extent that the effluent phosphorus standard would not apply to
sources tributary to so—called “riverine” lakes or reservoirs
(e.g., Lake Decatur) whose very low retention times appear to
limit growth of nuisance plants and algae regardless of
phosphorus concentrations. The Board noted (on page 13 of its
Opinion), however, that it was not satisified that the record
supported the aspect of the Agency’s proposal that removed
control requirements from all point sources of phosphorus which
happen to be located more than 25 miles from a lake. The Board
noted that some of the lakes and reservoirs potentially impacted
by the Agency’s 25 mile cut—off were, according to the EcIS, in a
transitional or balancing condition between mesotrophy and
eutrophy. Finally, in this regard, the Board noted that the
Agency, DENR, and other commentators agreed that internal
regeneration of phosphorus into the dissolved form from lake
sediments can be a “significant factor” in lake eutrophication
(Id., citing Exh. 1, pgs. 6—8, 34—38 and 54).
The Board’s Second First Notice proposal (which was
identical to its December 15, 1988, deferred Second Notice
proposal as corrected) attempted to supply the element it viewed
as missing from the Agency’s proposal, namely, a measure of
control over those point sources of phosphorus located more than
25 miles upstream from the receiving lake or reservoir. The
proposal approached the problem by, in effect, defining what
constituted a “significant” source. Based on testimony and
exhibits in the record, particularly the EcIS, the Board’s
proposal exempted from the effluent phosphorus standard only such
point sources whose effluent, if untreated for removal of
phosphorus, would contribute less than 3 of the point and non—
point source phosphorus loading of all tributaries to the
receiving lake or reservoir. Phosphorus loading was to be
estimated utilizing the National Eutrophication Surveys, Working
Paper Series, U.S. Environmental Protection Agency, June 1975
(NES).
At the June 23, 1989, hearing and in the comments and
exhibits submitted by various participants, the Board’s choice of
the 3 cutoff, as well as the use of the NES, were attacked as
unreliable and founded upon suspect dated methodology (R. 81-82,
85—87, 101—102, 15l_l52)*. The Agency submitted an exhibit (Exh.
57) suggesting that there was very little (3.3 on average)
difference in sedimentary phosphorus levels as between lakes
with, and lakes without, upstream point sources of phosphorus (R.
113—114). The Agency essentially urged the Board to ignore point
sources of sedimentary phosphorus as being insignificant or
negligible when compared to non—point sources (R. 82—83, 114-115
and 117). The Agency stated that the NES data was dated and
unreliable (R. 152), that there was not enough data presently
*
All references to transcript pages relate to the hearing of
June 23, 1989, unless otherwise noted.
110— 105
available upon which to base a statewide rule (R. 86—88), and
that diagnosis of lake problems would be necessarily lake—
specific (R. 90). Further, although the Agency and other
participants indicated that specific studies are underway in some
areas of the State (e.g., Lake Charleston
—
see R. 15, 25—26, 45-
46, and Ex. 51), the Agency suggested that future research
dollars would likely be directed at toxins rather than phosphorus
(R. 90—91).
The foregoing Agency views were generally endorsed or
accepted by other participants; however, no other participants
were willing to accept the Agency’s premise that point source
contributions of sedimentary phosphorus were insignificant or
negligible (R. 50, 123, 139—140). Mr. Kirschner of ILMA and
NALMS, while stating that a case-by-case analysis would be
required to confirm or refute the Agency’s position (R. 143—145),
pointedly disagreed with the concept of deregulation of point
sources of sedimentary phosphorus (R. 147—149). Even the Agency
conceded that the studies upon which it based its conclusions in
this regard could be easily faulted or “ripped apart” (R. 98 and
120).
The other major point of contention at the June 23, 1989,
hearing was whether the “riverine” exemption should be extended
to sources tributary to Lake Charleston. Mr. Alan Alford, who
testified on behalf of Charleston, stated that the basic
difference between Lake Charleston and Lake Decatur (which is
also a “riverine” lake) was that the former has a side channel
reservoir having a hydraulic retention time approaching two
years, in sharp contrast to Lake Charleston’s retention time of a
few days (R. 22). He expressed concern that an addition to the
already “large amount” of phosphorus in Lake Charleston might
detrimentally affect the side channel reservoir, which serves as
Charleston’s potable water supply. He also indicated that
studies of the phosphorus/nitrogen ratios in the lake indicate
that phosphorus may be a limiting factor in terms of causing or
contributing to eutrophication in either the lake or the side
channel reservoir and that tests are underway to determine
whether phosphorus or nitrogen was the limiting factor (R. 25—
26). Under questioning from the Agency, Mr. Alford agreed that
his purpose regarding the side channel reservoir would be
accomplished if the “riverine” exemption were amended to apply
only ‘where the lake and any side channel reservoir on an annual
basis exhibits a mean hydraulic retention time of lB days or
less~’ (R. 38).
Board Conclusions and Further Modifications (Second Notice)
On September 13, 1989, the Boardadopted a revised proposed
rule for Second Notice. The Board was persuaded that the
“riverine” exemption should not be extended
to
lakes having side
channel reservoirs where the side channel reservoirs do not
otherwise qualify for the exemption. Specifically, the Board
noted that Charleston made its point at the June 23, 1989,
U
0—11)6
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hearing, that the side-channel reservoir, which receives some 70
of its influent from the lake, has a retention time approaching
two years, rather than a few days. Accordingly, the Board
amended subsections (b) and (c)(1) of Section 304.123 of the
Second First Notice proposal for Second Notice purposes to
include the phrase “,including any side channel reservoir or
other portion thereof,” immediately preceeding the words “on an
annual basis”. The additional reference to “or other portion
thereof” was also inserted to make clear that the principle
applies irrespective of whether a segment of a lake is
denominated a “side channel reservoir”.
As to the issue of point sources of phosphorus which are at
least 25 miles upstream, the Board remained unpersuaded that the
Agency made out a case for blanket deregulation. The Board
specifically noted that no participant or commentator, including
the Agency, argued that such phosphorus discharges would not
eventually reach the receiving lake or reservoir or suggested
that such phosphorus as reaches the receiving lake or reservoir,
albeit in sedimentary form, could not be a significant factor in
cultural eutrophication* of the receiving lake or reservoir by
virtue of internal regeneration of the phosphorus into its
dissolved form and subsequent return to the euphotic zone wherein
it is again readily available for uptake by biota. Moreover, the
Board stated that even if it were to accept the Agency’s data
suggesting that, for most Illinois lakes and reservoirs, internal
regeneration of phosphorus is generally not a critical factor in
cultural eutrophication, the record did not show that internal
regeneration of phosphorus was not a critical factor for two of
the lakes of concern identified in the EcIS, Lakes Shelbyville
and Carlyle.
The Board recognized that the 3 cutoff figure could be
irrelevant to a given lake and was based on dated information
that could be of doubtful reliability and relevance. The Board
was therefore faced with a dilemma: either it could fashion yet
another attempt to deal with point sources of phosphorus 25 miles
or more upstream of a receiving lake, or it could, as the Agency
has proposed, rely on the presumed general nature of Illinois
lakes and watersheds and provide regulatory relief generally for
the more distant dischargers until the resource intensive data,
gathered on a lake-by—lake basis, indicated a need for further
point source controls.
The Board chose the former. The Board stated that it was
unwilling to provide regulatory relief, including the shutdown of
several existing phosphorus control facilities and the
termination of a number of phosphorus control construction
projects, where the impact on the State’s valuable water
resources was speculative at best. It agreed with all
*
Cultural eutrophication refers to those eutrophication
processes accelerated by human activities.
110—107
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participants that further research was needed on a lake and
watershed—specific basis, such as was underway at Lake
Charleston. Nevertheless, it recognized that regulatory relief
for some point sources of phosphorus could be appropriate,
particularly where the phosphorus arrives at the receiving lake
or reservoir in the sedimentary form or where such phosphorus
plays no material role in cultural eutrophication of that lake or
reservoir.
On September 13, 1989, the Board, therefore, proposed for
Second Notice a modified proposal which did not grant outright
relief, but rather provided for adjusted standard (AS) relief
pursuant to Section 28.1 of the Act. It conditioned regulatory
relief for point sources of phosphorus on the specific dynamics
of the affected watershed and the receiving lake or reservoir.
Rather than resort to the 3 cutoff and the NES study, both of
which had been questioned by cornmenters, the Board decided, in
keeping with the tenor of the comments, to require that
justification for relief from the 1.0 mg/l effluent phosphorus
standard be predicated upon a demonstration that phosphorus is
not the limiting nutrient for purposes of stimulating biological
growth in the receiving lake or reservoir. However, for point
sources at least 25 miles upstream of a eutrophic lake, the Board
decided to only require that phosphorus from internal
regeneration be ruled out as a limiting nutrient. The Board
stated that recognized that the AS showing for the more distant
point sources which are tributary to lakes which are already
eutrophic have a somewhat reduced hurdle to overcome to qualify
for relief from the standard, but that this reduction reflected
the presumption that phosphorus from such sources arrives at the
receiving lake or reservoir in sedimentary form, and is of
negligible concern where internal regeneration of phosphorus
plays no substantial role in keeping the lake or reservoir
eutrophic. In addition, the Board added definitions of the key
terms, such as “euphotic zone”, “eutrophication”, and “internal
regeneration”. Finally, the Board clarified its intent that
distances between a point source and the receiving lake or
reservoir are to be determined at the normal pool level, rather
than at some seasonal extreme.
The Board directed that filing of the Second Notice proposal
with the Joint Committee on Administrative Rules (JCAR) be
deferred until at least September 29, 1989, to allow participants
to comment on the several proposed changes made in the proposal
during First Notice. Comments were
to
be received by the Board
on September 25, 1989.
Board Conclusions and Further Modifications
(Revised Second Notice)
The Board received theAgency’s Second Notice Comments on
September 26, 1989. It was the only comment filed. Although
received tardily and unaccompanied by a motion to file instanter,
the Board accepted the Agency’s comments in view of the minimal
1~1)—I08
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nature of the tardiness and the apparent lack of prejudice to any
participants.
The Agency raised three points of contention in support of
its original proposal and in opposition to the Board’s proposed
Second Notice. The Board addressed each contention in its
October 18, 1989, Revised Second Notice Opinion and Order.
First, the Agency stated that the Board had mis-
characterized its testimony in stating that the Agency’s data
suggested “that internal regeneration of phosphorus is generally
not a critical factor in cultural eutrophication” or that, in any
case, “the record has certainly not shown that internal
regeneration of phosphorus is not a critical factor for two of
the lakes of concern identified in the EcIS, Lakes Shelbyville
and Carlyle” (Agency Second Notice Comments at p. 1, quoting the
Board’s Opinion and Order of September 13, 1989, p. 5). The
Agency noted that it had on several occasions underscored the
fact that internal regeneration also plays an important role.
However, the Agency asserted, “there is no evidence that suggests
that a point source’s loading rate has any effect on a downstream
lake’s internal regeneration of phosphorus” (Id. at p. 2,
referring to testimony of Toby Frevert at the June 23, 1989
hearing, R. at 80-103). The Agency concluded that whether
internal regeneration of phosphorus was a critical factor for
Lakes Shelbyville and Carlyle “should have absolutely no bearing
on the question of whether distant dischargers should be subject
to the 1.0 mg/i standard, if there is no evidence that suggests a
relationship between upstream point source loadings and
downstream internal regeneration” (Id.).
The Board disagreed with the Agency’s reasoning. The Board
reasoned that if it was true, that there was no evidence
suggesting that a point source’s loading has any effect on a
downstream lake’s internal regeneration of phosphorus, it was at
least equally true that there was also no evidence suggesting
that a point source’s loading does not have an effect on a
downstream lake’s internal regeneration of phosphorus. The Board
then stated that it stood to reason that incremental
contributions of phosphorus to lake sediments from any source
correspondingly increase the amount of phosphorus potentially
available for conversion to orthophosphorus during internal
regeneration and that it was thus anomalous for the Agency to
suggest, on the one hand, that internal regeneration of
phosphorus plays an “important role” in eutrophication and, on
the other hand, to discount the potential role of one type of
phosphorus source, particularly in close cases. The Board
recognized it may well be true that the predominant sources of
sedimentary phosphorus in most Illinois lakes are non—point
discharges and native soils, but concluded that it could not base
a rule which would apply to virtually all Illinois lakes upon
such assumptions. Rather than “obscuring the realities of lake
dynamics” as the Agency asserted (Id.), the Board, by its
110- 109
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proposal, recognized those realities, not subsuming potentially
vital distinctions within generalities.
As its second argument, the Agency disagreed with the
Board’s characterization of its (the Agency’s) support for an
Agency study entitled “Analysis of Sediment Phosphorus Levels in
Illinois Lakes” (Ex. 57). The Agency contended that the Board
“twisted” the Agency’s remarks about that study into a
“concession” that the study was “essentially flawed” (Id., p.
3). The Board considered the following statements made by the
Agency’s two witnesses regarding this study, but stated that it
had some difficulty visualizing how the comments were
misconstrued:
That exhibit is clearly not being offered as
the ultimate in desirable scientific
analysis... If someone decided to be critical
and find reasons why it wouldn’t meet a
scientific methodology or protocol, that would
be an easy thing to do. (Testimony of Toby
Frevert, R. 6/23/89, p. 98).
Y)ou could probably from a statistical
standpoint rip it apart, if I can quote Mr.
Frevert’s) words or if that is what he said.
(Testimony of Gregg Good, R. 6/23/89, p. 120).
In any event, the Board found the study inadequate as a
basis for concluding that there was no discernible difference
between the phosphorus content of lake sediments that received
point sources and those which do not. The Board listed several
reasons for its conclusion. First, the study in fact did show a
slightly (3.3) higher average sediment total phosphorus level in
lakes with tributary point sources of phosphorus (Exh. 57, Table
4) than in lakes without such point sources. Second, the study
by its nature did not purport to examine scientifically the
effect of a given point source or sources upon a given receiving
lake. Third, the trophic status of the lakes surveyed was not
examined, although some morphometric data was provided; the
lakes’ relative sensitivity to changes in phosphorus levels was
not revealed. Fourth, the lakes surveyed were not characterized
as to whether they were representative of Illinois lakes as a
whole. In this respect, the Board also noted that the study
indicated without qualification or explanation that the Agency
had sediment total phosphorus data on only 66 of the
approximately 412 Illinois lakes and reservoirs which equaled or
exceeded 20 acres of surface area. Fifth, the study did not
indicate whether the sampling results reported remained valid:
fewer than one—third of the reported sediment samples were less
than 10 years old and data on Lakes Shelbyville and Carlyle were
12 years old.
11 fl—i 10
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In noting the foregoing deficiencies, the Board stated that
it was in no manner denigrating the Agency’s efforts. The Board
emphasized that the study did not support the Agency’s thesis but
that it suggested a general correlation between watershed area to
surface area ratio (WA:SA) and average lake sediment levels of
phosphorus. The Board also stated that the study also suggested
a general correlation between other factors, including
morphometric characteristics, and sediment phosphorus levels.
The Board concluded that, taken as a whole, the study lent strong
support to comments made earlier by the Agency and others to the
effect that the impact of upstream phosphorus discharges on a
lake or reservoir cannot be gauged without a thorough
understanding of the particular eutrophication dynamics of that
lake or reservoir (see, e.g., Exh. 1, pp. 33, 38, 41 and 53—54;
Exh. 40, pp. 12, 18 and 128—130; R. 7/21/87, p. 47; and R.
6/23/89, pp. 144—145).
The Agency took considerable umbrage at the Board’s
assertion that other participants in the proceeding were not
willing to accept the Agency’s premise that distant point source
contributions of phosphorus are insignificant or negligible. The
Agency asserted that no participants were willing to refute that
premise (Agency Second Notice Comments, p. 4). It further
asserted that “a scientific study conducted pursuant to a sound
methodology is worth any number of people who pointedly disagree”
(Id.). In response, the Board noted that it did not have before
it such a scientific study in Exh. 57 and that because the
individual commenter in question was an officer of the Illinois
Lake Management Association as well as the North American Lake
Management Society, he was entitled to a measure of deference.
In this connection, the Agency repeatedly discounted the
consequences of its lack of scientific data. It accused the
Board of “attempting to use the inadequacy of our present
knowledge of phosphorus behavior as a pretext for disregarding
what little knowledge we do possess” (Id.). In response, the
Board stated that the charge was, at best, incongruous. The
Board also noted •that, in any event, the Agency in a certain
sense put its finger on the basic problem with this rulemaking.
The Board pointed out that it hardly trivialized the Agency’s
proposal; it struggled with the “inadequacy” and “little
knowledge” problems and concluded that it could not strip away
the existing environmental controls based on the inapposite
inferences and over—generalized conclusions contained in the
record. The Board also noted, however, that the record was
essentially devoid of substantive testimony endorsing the
Agency’s view of the underlying science in support of its
proposed relief even though some commentators endorsed the
Agency’s proposal. This was because the commentators primarily
focused on the added—on expense of phosphorus controls to justify
their endorsement. Moreover, it concluded that, contrary to the
Agency’s assertion, it provided significant relief, even beyond
that proposed by the Agency, as regards the riverine exemption.
11
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Despite its sizeable effort, the Agency was simply unable to
supply sufficient data to demonstrate that harm to Illinois
lakes, at least some of them, would not result from the wholesale
deregulation of those point sources of phosphorus more than 25
miles upstream. The Board stated that it was aware that, as the
Agency suggested, some point sources of phosphorus are, and will
continue to be, required to construct and operate phosphorus
controls which may ultimately prove unnecessary. Faced with this
dilemma, the Board decided to err on the side of the environment
and that it must trust that aggrieved dischargers will come
forward to demonstrate that, in their particular circumstances,
such controls are not warranted. Finally, the Board noted that
use of the adjusted standard approach contained in these rules
would serve as a more efficient method for resolution on a lake
by lake basis.
In its third argument, the Agency contended that proposed
Section 304.123(c) provided imperfect and incomplete guidance for
administering the adjusted standards relief mechanism. Although
the Board recognized that this could be true, it also noted that
section was not intended to be prescriptive in detail. Moreover,
the Board noted that, pursuant to Section 28.1 of the Act, the
adjusted standard relief mechanism was available even without
specifying justification requirements in the general rule and
that the provisions of Section 304.123(c) provided needed
additional requirements (i.e., additional to the requirements set
forth in Section 28.1(c) of the Act) for the adjusted standard
process in the form of narrative standards and specific types of
proofs required. Hence, the Board concluded that the Agency was
at least placed in a better position than if there were no such
standards provided. For the sake of clarity, however, the Board
amended proposed rule Section 304.123(c) to state that the new
requirements are additional to those set forth in Section 28.1(c)
of the Act. It then gave the Agency the opportunity to propose
additional rules to the Board should it wish the Board to
promulgate more specific requirements.
For the reasons stated above, the Board concluded that it
would not change the September 13, 1989, Second Notice proposed
amendments to 35 Ill. Adm. Code 304.123 except for clarification
of Section 304.123(c). It also stated that the proposal would be
filed as soon as possible with the JCAR.
Final Adoption
After filing the proposal with JCAR and in response to JCAR
concerns, the Board made further revisions to the text of its
revised Second Notice Order. Those revisionswere limited to
format changes of a typographical nature and therefore were not
substantive in nature. Because the Board indicated these
revisions to JCAR in submitting the revised Second Notice
package, it will not discuss those revisions in this Order. JCAR
issued a certification of no objection to the rules on April 3,
1990.
1 ifl—112
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The Board recognizes that the near—term effect of these
regulatory changes may be small. Some very small sources
(certain of those between 1500 P.E. and 2500 P.E.) may obtain
relief. Some others sources (certain of those between 2500 P.E.
and 5000 P.E.) will be made subject to the standard for the first
time. Many sources will be unaffected. Yet the possibility of
relief first raised by the Agency remains and the incentive to
truly understand the location—specific dynamics of eutrophication
is, in many cases, enhanced. The Board expects that owners and
operators of point sources of phosphorus, particularly those
which are more distant from the receiving lake or reservoir, may
wish to enter into cooperative efforts to study the receiving
lake and watershed system as a necessary prerequisite to
regulatory relief.
It should be remembered that when the Agency’s proposal was
first filed, the adjusted standards mechanism in Section 28.1 was
in its infancy. Also, in 1988, there were major revisions and
additions to the Section, and only recently (in 1989) has the
Board adopted general procedural rules to implement it. We
believe that this more efficient mechanism is particularly
appropriate for providing situation—specific relief from the
phosphorus regulatory requirements. The Board’s revised proposal
invokes this relatively new mechanism and specifies the level of
justification required of a petitioner pursuant to Section
28.1(b). Absent such specification, there would be no criteria
provided in the rule by which to determine the appropriate level
of justification for an adjusted standard. There would also be
no distinction between near point sources and more distant point
sources.
Most importantly, this proposal will protect the environment
and the public welfare by assuring that any relief from the
phosphorus effluent standard will not result in the cultural
eutrophication of Illinois lakes and reservoirs. As a related
benefit, this proposal places a premium on possessing knowledge
of the specific dynamics of eutrophication of a given lake or
reservoir. If nothing else, the record of this protracted
proceeding has abundantly demonstrated the need for such
knowledge.
ORDER
The Clerk of the Pollution Control Board is directed to
submit the following adopted rule to the Secondary of State for
Final Notice:
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE C: WATER POLLUTION
CHAPTER I: POLLUTION CONTROL BOARD
PART 304
EFFLUENT STANDARDS
110—113
—12—
SUBPART A: GENERAL EFFLUENT STANDARDS
Section
304.101
304.102
304.103
304.104
304.105
304.106
304.120
304. 121
304.122
304.123
304.124
304.125
304.126
304.140
304.141
304.142
Preamble
Dilution
Background Concentrations
Averaging
Violation of Water Quality Standards
Offensive Discharges
Deoxygenating Wastes
Bacteria
Nitrogen (STORET number 00610)
Phosphorus (STORET number 00665)
Additional Contaminants
pH
Mercury
Delays in Upgrading (Repealed)
NPDES Effluent Standards
New Source Performance Standards (Repealed)
SUBPART B: SITE SPECIFIC RULES AND EXCEPTIONS
NOT OF GENERAL APPLICABILITY
Section
304.201
304.202
304.203
304.204
304.205
304.206
304.207
304.208
304.209
304.210
304.212
304.213
304.214
304.215
304.216
304.219
304.220
Section
304.301
304.302
APPENDIX
Wastewater Treatment Plant Discharges of the
Metropolitan Sanitary District of Greater Chicago
Chlor—alkali Mercury Discharges in St. Clair County
Copper Discharges by Olin Corporation
Schoenberger Creek: Groundwater Discharges
John Deere Foundry Discharges
Alton Water Company Treatment Plant Discharges
Galesburg Sanitary District Deoxygenating Wastes
Discharges
City of Lockport Treatment Plant Discharges
Wood River Station Total Suspended Solids Discharges
Alton Wastewater Treatment Plant Discharges
Sanitary District of Decatur Discharges
Union Oil Refinery Ammonia Discharge
Mobil Oil Refinery Ammonia Discharge
City of Tuscola Wastewater Treatment Facility
Discharges
Newton Station Suspended Solids Discharges
North Shore Sanitary District Phosphorus Discharges
East St. Louis Treatment Facility, Illinois—American
Water Company
SUBPART C: TEMPORARY EFFLUENT STANDARDS
Exception for Ammonia Nitrogen Water Quality Violations
City of Joliet East Side Wastewater Treatment Plant
A References to Previous Rules
110—114
—13—
AUTHORITY: Implementing Section 13 and authorized by Section 27
of the Environmental Protection Act (Ill. Rev. Stat. 1987, ch.
111 1/2 pars. 1013 and 1027).
SOURCE: Filed with the Secretary of State January 1, 1978;
amended at 2 Ill. Reg. 30, p. 343, effective July 27, 1978;
amended at 2 Ill. Reg. 44, p. 151, effective November 2, 1978;
amended at 3 Ill. Reg. 20, p. 95, effective May 17, 1979; amended
at 3 Ill. Reg. 25, p. 190, effective June 21, 1979; amended at 4
Ill. Reg. 20, p. 53, effective May 7, 1980; amended at 6 Ill.
Reg. 563, effective December 24, 1981; codified at 6 Ill.. Reg.
7818; amended at 6 Ill. Reg. 11161, effective September 7, 1982;
amended at 6 Ill. Reg. 13750, effective October 26, 1982; amended
at 7 Ill. Reg. 3020, effective March 4, 1983; amended at 7 Ill.
Reg. 8111, effective June 23, 1983; amended at 7 Ill. Reg. 14515,
effective October 14, 1983; amended at 7 Ill. Reg. 14910,
effective November 14, 1983; amended at 8 Ill. Reg. 1600,
effective January 18, 1984; amended at 8 Ill. Reg. 3687,
effective March 14, 1984; amended at B Ill. Reg. 8237, effective
June 8, 1984; amended at 9 Ill. Reg. 1379, effective January 21,
1985; amended at 9 Ill. Reg. 4510, effective March 22, 1985;
peremptory amendment at 10 Ill. Reg. 456, effective December 23,
1985; amended at 11 Ill. Reg. 3117, effective January 28, 1987;
amended in R84—13 at 11 Ill. Reg. 7291, effective April 3, 1987;
amended in R86—l7(A) at 11 Ill. Reg. 14748, effective August 24,
1987; amended in R84—l6 at 12 Ill. Reg. 2445, effective January
15, 1988; amended in R83—23 at 12 Ill. Reg. 8658, effective May
10, 1988; amended in R87—27 at 12 Ill. Reg. 9905, effective May
27, 1988; amended in R82—7 at 12 Ill. Reg. 10712, effective June
9, 1988; amended in R85—29 at 12 Ill. Reg. 12064, effective July
12, 1988; amended in R87—22 at 12 Ill. Reg. 13966, effective
August 23, 1988; amended in R86—3 at 12 Ill. Reg. 20126,
effective November 16, 1988; amended in R84—20 at 13 111. Reg.
851, effective January 9, 1989; amended in R85—ll at 13 Ill. Reg.
2060, effective February 6, 1989, amended in R88—l at 13 Ill.
Reg. 5976, effective April 18, 1989; amended in R86—l7B at 13
Ill. Reg. 7754, effective May 4, 1989; amended in R88—22 at 13
Ill. Reg. 8880, effective May 26, 1989; amended in R87—6 at 14
Ill. Reg.
,
effective
SUBPART A: GENERAL EFFLUENT STANDARDS
Section 304.123 Phosphorus (STORET number 00665)
a) No effluent discharge within the Lake Michigan Basin
shall contain more than 1.0 mg/l of phosphorus as P.
Ne e ±t~e~±~re~i ar~’~et~ee wh+eh se~e~ w4th4r~the
Fex R4~er Ba~4t~a~e~eand 4ne+’~d±n~P+~akee sake and
whe~e t~n~t’ea~edwa~e ‘ead ~e
~See
or mere pept~a~4en
~ha~ een~e~nmere then ~9
ef
~hee~heme ac F--
110—115
—14—
ej- Ne eff~tierr~ft-em any ~et~ree wh~eh d ehar~e~th a +eke
er reaer~e~rwi~ha ~rfaee area ef 8~ ha ~8 eerea~ er
mere or th arty ~r~b~ary ~e ~eh a ‘ake or reeer~’eirend
whe~e~rt~ree~ed waste ‘ead ~ SeBe or mere pep~a~ert
ea~en~a aha+~ cen~a~nmere than ~-~9 ~ ef
~he~pherti~ aa P~
d~
Ne eff~tien~ft-em any ~e~ree whi~eh d~eharge~~e a ~eke
or re~erve~rwith a ~t±rfaee area ef 8~ ha f~8aereej- er
mere which dee~
rte~ eeme~y
w4t-h Seer-ken 38~29S or
arty ~r~b~ary th ~tie~ta I~ake er re~er~e~rand whe~e
~n~rea~ed waste ~ead ~s
or mere pep~e~ert
ea~en~ end w~eh ~ rte~~everned by See~en~
304 1~8~-a~or 3047l28~ej ~ha~ een~a~nmere than
l--e
mg~±ef phorpher~s a~ P7
b)
No effluent from any source which discharges to a lake
or reservoir with a surface area of 8.1 hectares (20
acres) or more, or to any tributary of such a lake or
reservoir whose untreated waste load is 2500 or more
population equivalents, and which does not utilize a
third—stage lagoon treatment system as specified in
Section 304.120(a) and
(C),
shall exceed 1.0 rng/l of
phosphorus as P; however, this subsection shall not
apply where the lake or reservoir, including any side
channel reservoir or other portion thereof, on an annual
basis exhibits a mean hydraulic retention time of 0.05
years (18 days) or less.
~J
Pursuant to Section 28.1 of the Act, the owner or
operator of any source subject to subsection (b) may
apply for an adjusted standard. In addition to the
proofs specified in Section 28.1(c) of the Act, such
application shall, at a minimum, contain adequate proof
that the effluent resulting from grant of the adjusted
standard will not contribute to cultural eutrophication,
unnatural plant or algal growth or dissolved oxygen
deficiencies in the receiving lake or reservoir. For
purposes of this subsection, such effluent shall be
deemed to contribute to such conditions if phosohorus is
the limitinc nutrient for biological growth in the lake
or reservoir, taking into account the lake or reservoir
limnclogy, moroholocical, physical and chemical
-
characteristics, and sediment transoort. However, if
the effluent discharge enters a tributary at least 40.25
kilometers (25 miles) upstream of the point at which the
tributary enters the lake or reservoir at normal pool
level, such effluent shall not be deemed to contribute
to such conditions if the receiving lake or reservoir is
eutrophic and phosphorus from internal regeneration is
not a limiting nutrient.
ed) For the purposes of this Section the term “lake or
reservoir” shall not include low level pools constructed
110-116
—15—
in free flowing streams or any body of water which is an
integral part of an operation which includes the
application of sludge on land.
f~ ?emp3~arteewith
the
m~tat~ensef ~ara~raph (-e~ehe+~
be aehieved by the fe~ew~rtgdetes-
±-~
New 5eureee ahafl eemp±y en the effeeti~vedate ef
thisreg~±at~en7end
~j. E~at4n~aetireee ahe+~ eemp~y by Beeember Sli ~9B8y
or stteh ether date ae reqti±redby NPBES perm4ty or
a~ordered by the Beard under P~t~e~ or
~X ef the Aet7
~‘).
?emp±ianeewith the ++m4tat4one ef ~era~reph ?d-)- ~ha~
be aeh~e~edby Beeember 3~7~98S7 er eueh ether date aa
required by NPBES permitr er ae ordered by the Beard
under T~t~eV+~ or P~t~e~M ef the AetT
e) Compliance with the limitations of subsection (b) shall
be achieved by the following dates:
1) Sources with the present capability to comply shall
do so on the effective date of this Section
2) All other sources shall comply as required by NPDES
permit.
f) For purposes of this Section, the following terms shall
have the meanings specified:
1) “Dissolved oxygen deficiencies” means the
occurrence of a violation of the dissolved oxygen
standard applicable to a lake or reservoir.
(BOARD NOTE: Dissolved Oxygen standards for general
use waters are set forth at 35 Ill. Adm. Code
302.206; Dissolved Oxygen standards for secondary
contact or indigenous aquatic life waters are set
forth at 35 Ill. Adm. Code 302.405.)
2) “Euphotic zone” means that region of a lake cr
reservoir extending from the water surface to a
depth at which 99 of the surface light has
disappeared or such lesser depth below which
photosynthesis does not occur.
3) “Eutrophic” means a condition of a lake or
reservoir in which there is an abundant supply of
nutrients, including phosphorus, accounting for a
high concentration of Biomass.
110—117
—16—
4) “Eutrophication” means the process of increasing or
accumulating plant nutrients in the water of a lake
or reservoir. Cultural eutrophication is
eutrophication attributable to human activities.
5) “Internal regeneration” means the process of
conversion of phosphorus or other nutrients in
sediments of a lake or reservoir from the
particulate to the dissolved form and the
subsequent return of such dissolved forms to the
eutrophic zone.
6) “Limiting nutrient” means a substance which is
limiting to biological growth in a lake or
reservoir due to its short supply or unavailability
with respect to other substances necessary for the
growth of organisms.
7) “Unnatural plant or algal growth” means the
occurrence of a violation of the unnatural sludge
standard applicable to a lake or reservoir with
respect to such growth.
(BOARD NOTE: Unnatural sludge standards for general
use waters are set forth at 35 Ill. Adm. Code
302.203; unnatural sludge standards for secondary
and indigenous aquatic life waters are set forth at
35 Ill. Adm. Code 302.403.)
(Source: Amended in R87—6 at 14 Ill. Reg.
effective
IT IS SO ORDERED.
B. Forcade dissented.
I, Dorothy
~.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above..Opinion and Order was
adopted on the ~/~-day of
_____________
,
1990, by a vote
of
_______.
~
127,
~
Dorothy M.YGunn, Clerk
Illinois Pollution Control Board
110—1 iS
