BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
TRIENNIAL
REVIEW
OF SULFATE
AND )
TOTAL DISSOLVED SOLIDS WASTE
)
QUALITY STANDARDS: PROPOSED
)
AMENDMENTS TO 35 ILL. ADM. CODE )
302.102(b)(6), 302.102(b)(8), 302.102(b)(10) )
302.208(g), 309.103(c)(3),
405.109(b)(2)(A), )
409.109(b)(2)(B), 406.100(d); REPEALER OF )
35 ILL. ADM. CODE 406.203 and Part 407; )
and PROPOSED NEW 35 ILL. ADM. CODE )
302.208(h)
)
R07-9
(Rulemaking - Water)
NOTICE OF FILING
TO: Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control
Board
100 West
Randolph Street
Suite
11-500
Chicago, Illinois 60601
(VIA ELECTRONIC MAIL)
Ms. Marie E. Tipsord
Hearing Officer
Illinois Pollution
Control
Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA U.S. MAIL)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Illinois Pollution Control Board an ENTRY OF APPEARANCE OF KATHERINE
D. HODGE, ENTRY OF APPEARANCE OF MONICA T. RIGS, and THE
ILLINOIS ENVIRONMENTAL
REGULATORY
GROUP'S COMMENTS, copies
of
which
are herewith served upon you.
Respectfully submitted,
Dated: June 7, 2007
By:/s/ Katherine D. Hods
Katherine D. Hodge
Katherine D. Hodge
Monica T. Rios
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217)523-4900
THIS FILING SUBMITTED ON RECYCLED PAPER
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
CERTIFICATE OF SERVICE
I, Katherine D. Hodge, the undersigned, certify that I have served the attached
ENTRY OF APPEARANCE OF KATHERINE D. HODGE, ENTRY OF
APPEARANCE OF MONICA T. RIGS, and THE ILLINOIS ENVIRONMENTAL
REGULATORY GROUP' S COMMENTS upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois
Pollution
Control
Board
100
West
Randolph Street
Suite 11-500
Chicago, Illinois, 60601
via electronic mail on June 7, 2007; and upon:
Ms. Marie E. Tipsord
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago,
Illinois 60601
Sanjay K. Sofat, Esq.
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
Mr. Kenneth W. Liss
Andrews Environmental
Engineering
3300 Ginger Creek Drive
Springfield, Illinois 62711
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
Ms. Beth Steinhorn
2021
Timberbrook
Springfield,
Illinois 62702
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid,
on June 7,
2007.
/s/ Katherine D. Hodýe
Katherine D. Hodge
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
11V
THE MATTER OF:
)
TRIENNIAL REVIEW OF
SULFATE
AND )
R07-9
TOTAL DISSOLVED SOLIDS WATER
) (Rulemaking
- Water)
QUALITY STANDARDS: PROPOSED )
AMENDMENTS TO
35 ILL. ADM. CODE )
302.102(b)(6), 302.102(b)(8),
302.102(b)(10) )
302.208(g), 309.103(c)(3), 405.109(b)(2)(A), )
409.109(b)(2)(B), 406.100(d); REPEALER OF )
35 ILL. ADM.
CODE
406.203
and Part 407; )
and PROPOSED NEW 35 ILL. ADM. CODE )
302.208(h)
)
ENTRY OF APPEARANCE OF KATHERINE D. HODGE
NOW COMES KATHERINE D. HODGE, of the law firm HODGE DWYER
ZEMAN, and hereby
enters
her appearance
in this matter on behalf of the Illinois
Environmental Regulatory Group.
Respectfully submitted,
By: /s/ Katherine D. Hodge
Katherine D. Hodge
Dated: June 7, 2007
Katherine D. Hodge
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217)
523-4900
I ERG-OOI ýR DocketsýFilingsýR07-09ýEOA - KDH - R07-9
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
BEFORE
THE ILLINOIS POLLUTION
CONTROL
BOARD
IN THE MATTER OF:
)
TRIENNIAL REVIEW OF SULFATE AND ) R07-9
TOTAL DISSOLVED SOLIDS WATER
) (Rulemaking - Water)
QUALITY STANDARDS: PROPOSED
)
AMENDMENTS TO 35 ILL. ADM. CODE )
302.102(b)(6), 302.102(b)(8), 302.102(b)(10)
)
302.208(g), 309.103(c)(3), 405.109(b)(2)(A), )
409.109(b)(2)(B), 406.100(d); REPEALER OF )
35 ILL. ADM. CODE 406.203 and
Part
407;
)
and
PROPOSED
NEW
35 ILL. ADM. CODE )
302.208(h)
)
ENTRY OF APPEARANCE OF
MONICA T. BIOS
NOW COMES MONICA T. RIOS, of the law firm HODGE DWYER ZEMAN,
and hereby enters her appearance in this
matter on behalf of the Illinois Environmental
Regulatory Group.
Respectfully submitted,
By:
Dated: June 7, 2007
Monica T. Rios
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
I ERG-001\R Dockets\Filings\R07-09\EOA - MTR - R07-9
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
TRIENNIAL REVIEW
OF SULFATE
AND
)
TOTAL DISSOLVED SOLIDS WASTE
)
QUALITY STANDARDS: PROPOSED )
AMENDMENTS
TO 35
ILL.
ADM. CODE )
R07-9
302.102(b)(6), 302.102(b)(8), 302.102(b)(10) )
(Rulemaking-Water)
302.208(g), 309.103(c)(3), 405.109(b)(2)(A), )
409.109(b)(2)(B), 406.100(d); REPEALER OF )
35 ILL. ADM. CODE 406.203 and Part 407; )
and PROPOSED NEW 35 ILL. ADM. CODE )
302.208(h)
)
THE ILLINOIS ENVIRONMENTAL
REGULATORY
GROUP'S COMMENTS
NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP
("IERG"), by and through its attorneys, HODGE DWYER ZEMAN,
and submits the
following comments in the above-referenced matter:
I. INTRODUCTION
IERG, a non-profit Illinois corporation, was organized to promote and advance
the interests
of
its members before governmental
agencies, such as the Illinois
Environmental Protection Agency (the "Illinois EPA"), and before the Illinois Pollution
Control Board (the "Board"). IERG's members include
companies engaged in industry,
commerce, manufacturing, agriculture, trade, transportation, or other related
activities,
and which persons, entities, or businesses are all regulated by governmental agencies that
promulgate, administer, or enforce environmental laws, regulations,
rules, or policies.
On behalf of its members, IERG has participated in the development of the
proposed regulations by attending outreach meetings, discussing drafts of the proposal
with the Illinois EPA, and participating
at Board hearings.
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
IERG generally supports the Illinois EPA's proposed amendments ("Proposed
Rule") to the regulations to change the sulfate standard and eliminate the total dissolved
solids ("TDS") standard. However,
IERG requests that the Board favorably consider
IERG's comments
as it proceeds in this rulemaking.
II. TECHNICAL FEASIBILITY AND ECONOMIC
REASONABLENESS OF
THE PROPOSED RULE
IERG understands that the Board
requested, as required by Section 27(b) of the
Illinois Environmental
Protection Act ("Act") 415 ILCS 5/27(b), by letter dated
November 27, 2006, that the Department of Commerce
and Economic Opportunity (the
"DCEO") conduct
an economic impact study of the Proposed Rule. To date, the DCEO
has not prepared such study as requested
by the Board, nor is it required to complete a
study under Section
27(b) of the Act. 415 ILCS 5/27(b). The Act provides, in pertinent
part, that "[t]he Department
ý
within 30 to
45 days of such request produce a study of
the economic
impact of the proposed rules." 415 ILCS 5/27(b). (Emphasis added.)
IERG does not believe that the Section
27(b) request for the DCEO's economic
impact analysis
alone fulfills the obligations of aiding the Board in its determination of
the economic impact of a proposed rule. As stated in Section 27(a) of the Act, "the
Board shall take into account...the
technical feasibility and economic reasonableness of
measuring or reducing the particular type of pollution." 415 ILCS 5/27(a).
The Board
must fully take into consideration the
economic impact produced by an economic
analysis.
In order to do so, a full and adequate record should be developed, which
includes such documentation supporting any proposed amendments
as technically
feasible
and
economically
reasonable. Further, Section 27(a) states:
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
Anýperson filing
with
the Board
a written
proposal
for the adoption,
amendment, or repeal of regulations shall provide information
supporting the change and shall at the same time file a copy of such
proposal with the Agency and the Department of Natural Resources.
To aid the Board and to assist the public in determining which
facilities will be affected, the person filing a proposal shall describe, to
the extent practicable, the universe of the affected sources and
facilities and the economic impact of the proposed rule.
415 ILCS 5/27(a). (Emphasis added.)
On
its face, the Act states that the burden is on
the proponent of any proposed rule
to provide information to the Board. Therefore, the burden is on the Illinois EPA to
establish the technical
feasibility
and
economic reasonableness
of the
Proposed
Rule.
IERG does not believe that the Illinois EPA has adequately met its burden - particularly
as it relates to the economic
impact of the Proposed Rule on dischargers. The
"Technical
Feasibility and Economic Justification" portion of the Illinois EPA's Proposed Rule
states:
For most dischargers, the new sulfate and total dissolved solids
standards will allow attainment of water quality standards without the
implementation of additional
management
practices or
process
alternatives. A significant majority of discharges would meet the
applicable permit limits with the help of ongoing and routine control
measures. Mines must continue to optimize the best management
practices to discourage the formation of sulfates and the erosion of
soils that contribute the substance to wastewaters.
Agency Regulatory Proposal, Triennial Review of Sulfate and Total Dissolved Solids
Waste Quality Standards:
Proposed Amendments
to 35 Ill. Adm. Code 302.102(b)(61,
302.102(b)(8), 302.102(b210), 302.208(8 , 309.103 c
409.109(b)(2)(B), 406.100(d);
Repealer
of 35 Ill. Adm. Code 406.203 and Part 407; and
Proposed New 35 Ill. Adm. Code 302.208(h), PCB No. 07-09 at 13. (I11.Po1.Control.Bd.
Oct. 23, 2006) (hereinafter
this rulemaking
will
be cited as "Triennial Review
of Sulfate
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
and TDS Water
Quality Standards"). Further, the Illinois EPA states in its proposal that
the "Agency anticipates that the proposal would require a small
number
of
existing mines
to employ additional controls to meet water quality based permit limits." Id.
The Illinois EPA failed to provide the basis
for these statements. Mr. Robert
Mosher,
Manager of the Illinois EPA's Water Quality Standards Unit, testified at the
March 7, 2007 hearing in this matter that NPDES permit
limits, as a result of these
regulations, "will be protective, yet not overly so, and will cause
no unnecessary
burden
on economic activity."
Transcript of March 7, 2007 Hearing, Triennial Review of Sulfate
and
TDS Water Quality Standards, PCB No. 07-09 at 22 (I11.Po1.Control.Bd.
Mar. 16,
2007) (hereinafter cited
as Mar. Tr.). Mr. Mosher offered no analytical basis for making
such a statement,
and without the availability of a full economic analysis,
it is difficult to
accept that such a statement
is justified. Further, it is clear that the Illinois EPA does not
lack the ability to conduct such analysis as demonstrated by the
testimony of Mr. Brian
Koch, a toxicologist in Illinois
EPA's Water Quality Standards Section, during the
March 7, 2007 hearing regarding the impact of the Proposed Rule on
livestock.
See
egý nerallX, Mar. Tr. at
22-36. For example, Mr. Koch stated that a sulfate standard of
2,000 milligrams per liter "would not lead to adverse effects on
livestock or economic
impacts to livestock operations." Id. at 3; see also
Testimony of Brian Koch, Triennial
Review of Sulfate
and TDS Water Quality Standards, PCB No. 07-09 at 8
(I11.Po1.Control.Bd. Feb. 5, 2007) (hereinafter
"Koch Testimony").
III. SUPPORT OF CITGO'S
REQUEST TO EXTEND THE PROPOSED
RULE TO SECONDARY CONTACT WATERS
IERG supports the
elimination of the TDS standard in general use waters.
CITGO Petroleum Corporation ("CITGO"),
in its prefiled testimony, requests that the
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
Board
extend the rulemaking to secondary contact waters as well. Testimony of
James
E.
Huff, P.E., Triennial Review of Sulfate and TDS
Water Quality Standards, PCB No. 07-
09 at 1 (I11.Po1.Control.Bd. Apr. 9, 2007). In the alternative, CITGO requests that the
sulfate and TDS standards extend to its refinery in Lemont,
which discharges to the
Chicago Sanitary & Ship Canal, a secondary contact water. Testimony of Brigitte Postel,
Triennial Review of Sulfate and TDS Water
Ouality
Standards, PCB No. 07-09
at
2
(Il1.Pol.Control.Bd. Apr. 9, 2007). IERG asks that the Board consider the suitability of
this request within this rulemaking.
IERG understands that the Illinois EPA intends
to address TDS in secondary
contact waters in the ongoing Use and Attainability Analysis ("UAA") process and future
rulemaking
proceeding.
Currently, several water quality criteria proposed in the UAA
draft rule are under debate, including proposed water quality criteria for temperature,
bacteria, and ammonia. The Illinois EPA has not provided a definitive time period
to
file
its proposed rulemaking with the Board, and has only stated that it believes it will be filed
sometime later this year. Transcript of Apri123, 2007 Hearing, Triennial
Review of
Sulfate and TDS Water Quality Standards, PCB No. 07-09 at 40 (Il1.Pol.Control.Bd.
May 4, 2007) (hereinafter cited as Apr. Tr.) Further,
the Illinois EPA has stated it prefers
to address TDS in a future rulemaking in order to provide an opportunity to stakeholders
to comment. Id. Illinois EPA's justification is inadequate because, as more fully
discussed in CITGO's prefiled testimony, TDS is not an issue with stakeholders in
the
UAA draft proposal.
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
IV. RETROACTIVE APPLICATION OF THE PROPOSED STANDARDS
The standard being proposed is the result of the development of two equations for
sulfate at specified ranges of hardness and chloride. See enýerallX
Koch Testomony.
The equations
allow for the calculation of site-specific sulfate standards dependent on
water quality characteristics.
Id. As
stated
in its economic impact report, the Illinois
Coal Association (the "ICA") believes that the standard being proposed is too restrictive,
and, even if possible to attain, will be
costly. Exhibit 2, "Determination of Economic
Impact of Changing Water Quality Standards for Sulfate on Coal Mines," Triennial
Review of Sulfate and TDS Water Ouality
Standards, PCB No. 07-09 at 1
(Il1.Pol.Control.Bd. Apr. 23, 2007). As stated in its testimony during the
Apri123rd
hearing, the ICA explained:
[t]he cost of a system designed to achieve a 2,000
mg/L
effluent
limit
using excess lime and hydrochloric acid would
have an annualized
operating cost
of $542,000 and an annualized capital cost of $471,500
for every 100 acres of drainage, resulting in a total cost of $10,953,000
projected over a ten year period (ICCI 2005).
Illinois
Coal
Association Industry Comments, Triennial Review of Sulfate and TDS
Water Quality Standards, PCB No. 07-09 at 1 (I11.Po1.Control.Bd. Apr. 9, 2007).
IERG understands
that of particular concern to the industry is the ability of old,
closed mines to comply with the sulfate standard being proposed. In support of the ICA
and IERG members involved
in
this
industry, IERG requests that the Board consider
limiting prospective applicability of the rule to those mines currently active and
operational, and to those previously closed, inactive mines at such time as they
may
be
re-opened for active mining.
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
V. CONCLUSION
IERG appreciates the opportunity to participate in this proceeding,
and
respectfully
requests that the Board take these comments into consideration.
IERG reserves the right to supplement or modify these comments.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By:
/s/
Katherine
D. Hodýe
One of Its Attorneys
Dated: June 7, 2007
Katherine
D. Hodge
Monica T. Rios
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
IERG-001\R Dockets\Filings\R07-09\IERG's Comments
Electronic Filing, Received, Clerk's Office, June 7, 2007
* * * * * * PC #7 * * * * * *
