BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
WATER QUALITY STANDARDS AND
EFFLUENT LIMITATIONS
FOR THE
CHICAGO AREA WATERWAY SYSTEM
AND LOWER DES PLAINES RIVER
PROPOSED AMENDMENTS TO 35 ILL.
ADM. CODE 301, 302, 303, and 304
)
)
)
)
)
)
)
)
R08-9
(Rulemaking - Water)
NOTICE OF FiLING
TO:
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James
R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Deborah
J. Williams, Assistant Counsel
Stefanie N. Diers, Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Persons included on the attached
SERVICE LIST
PLEASE TAKE NOTICE that I have today filed with the Office
ofthe Clerk ofthe
Pollution Control Board MIDWEST GENERATION'S MEMORANDUM IN SUPPORT
OF
MWRDGC'S MOTION TO STAY, a copy of which is herewith served upon you.
MIDWEST GENERATION, L.L.C.
~~~
Susan M. Franzetti
iji4
Date: June 26, 2008
Susan
M. Franzetti
Nijman Pranzetti LLP
10
S. LaSalle St., Suite 3600
Chicago, IL 60603
(312) 251-5590 (phone)
(312) 251- 4610 (fax)
Kristy
A.
N. Bulleit
Brent Fewell
Hunton
&
Williams, LLP
1900
K.
Street, NW
Washington, DC 20006
(202) 855-1500 (phone)
(202) 778-7411 (fax)
Electronic Filing - Received, Clerk's Office, June 26, 2008
CERTIFICATE OF SERVICE
I, the undersigned, certify that on tins 26
tl1
day of June, 2008, I have served electronically
the attached MIDWEST GENERATION'S MEMORANDUM IN SUPPORT OF MWRDGC'S
MOTION TO STAY, aod NOTICE
OF FILING upon the following person:
Jolm Therriault, Assistaot Clerk
Illinois Pollution Control Board
James
R. Thompson Center
100 West Raodolph Street, Suite 11-500
Chicago, IL 6060 I
aod by U.S. Mail, first class postage prepaid, to the following persons:
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center
100 West Raodolph Street, Suite 11-500
Clncago, IL 6060 I
The participaots listed on the attached
SERVICE LIST
{00004662.DOC}
Deborah J. Williams, Assistaot Counsel
Stefanie N. Diers, Assistaot Counsel
Illinois Environmental Protection Agency
1021 North Graod Avenue East
P.O. Box 19276
Springfield,IL 62794-9276
~~~
I
Susao M. Fraozetti
~
2
Electronic Filing - Received, Clerk's Office, June 26, 2008
SERVICE LIST
Frederick M. Feldman
Ronald
M. Hill
Margaret
T. Conway
Metropolitan Water Reclamation District
of Greater Chicago
III East Erie Street
Chicago, IL 60611
Bill Richardson, Chief Legal Counsel
Illinois Department ofNatural Resources
One Natural Resources Way
Springfield, IL 62702-1271
Keith Harley
Elizabeth Schenkier
Chicago Legal Clinic, Inc.
205 West Monroe, 4th Floor
Chicago, IL 60606
Katherine
D. Hodge
Monica
T.
Rios
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box 5776
Springfield, IL 62705-5776
Dennis Duffield
Director
of Public Warks & Utilities
City
of Joliet
921 E. Washington St
Joliet,
IL 60431
Claire Manning
Brown Hay& Stephens LLP
700 First Mercantile Bani, Bldg
205
S. Fifth St
Springfield, IL 62705-2459
I00004662.DOC}
3
Matthew Dunn, Chief
Environmental Bureau
Office
of the Attorney General
100 West Randolph, 12th Floor
Chicago, IL 60601
Ann Alexander
Natural Resources Defense Counsel
101 N. Wacker Dr., Ste. 609
Chicago, IL 60606
Thomas V. Skinner
Thomas
W. Dimond
Kevin Deshamais
Jennifer
A.
Simon
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606-4637
Albert Ettinger
Jessica Dexter
Environmental Law & Policy Center
35
E. Wacker Dr., Suite 1300
Chicago, IL 60601
Richard Kissel
Roy Harsch
DrinkerBiddle
191 N. Wacker Dr., Suite 3700
Chicago, IL 60606-1698
Charles Wesselhoft
James Harrington
Ross& Hardies
150 N. Michigan Ave
Chicago, IL 60601-7567
Electronic Filing - Received, Clerk's Office, June 26, 2008
Frederick Keady
Vennillion Coal Company
1979 Jolms Drive
Glenview, lL 60025
Georgia Vlahos
Naval Training Center
260lA Paul Jones St
Great Lalces,
lL 60088-2845
W.C. Blanton
Blackwell Sanders LLP
4801 Main St, Suite 1000
Kansas City, MO 64112
Jerry Paulsen
Cindy SkuIaud
McHemy County Defenders
132 Cass Street
Woodstock,
lL 60098
Bernard Sawyer
Thomas Granto
Metropolitan Water Reclamation District
6001 W. Pershing Rd
Cicero,
lL 60650-4112
Fredric Andes
Erika Powers
Bames
&
Thornburg
1 North Wacker
Dr
Suite 4400
Chicago, lL 60606
Bob Carter
Bloomington Nornlal Water Reclamation
PO Box 3307
Bloomington, lL 61702-3307
Kenneth W. Liss
Andrews Environmental Engineering
3300 Ginger Creek Drive
Springfield, lL 62711
{00004662.o0C J
4
Fred 1. Hubbard
P.O.
Box 12
16 West Madison
Danville,
lL 61834
Kay Anderson
American Bottoms
One American Bottoms Road
Sauget,
lL 62201
Robert VanGyseghem
City of Geneva
1800 South St
Geneva,
lL 60134-2203
Albert Ettinger
Freeman Freeman
&
Salzman
401 N. Michigan Ave
Chicago,
lL 60611
Lisa Frede
Chemical Industry Council
of Illinois
2250 E. Devon Ave
Suite 239
Des Plaines,
lL 60018-4509
Jack Darin
Sierra Club
70 E.
Lalce St
Suite 1500
Chicago,
lL 60601-7447
Tom Muth
Fox Metro Water Reclamation District
682 State Route
31
Oswego, lL 60543
Vicky McKinley
Evanston Environmental Board
223 Grey Avenue
Evanston,
lL 60202
Electronic Filing - Received, Clerk's Office, June 26, 2008
Albert Ettinger
Jessica Dexter
Environmental Law
&
Policy Center
35
E. Wacker
Suite 1300
Chicago, lL 6060 I
James
1. Daugherty
Thorn Creek Basin Sanitary District
700 West End Avenue
Chicago Heights,
lL 60411
Tracy Elzemeyer
American Water Company
727 Craig Road
St. Louis, MO 63141
Irwin Polls
Ecological Monitoring and Assessment
3206 Maple Leaf Drive
Glenview,
lL 60025
Jeffrey
C. Fort
Ariel
J. Tesher
Sonnenschein Nath
&
Rosenthal LLP
7800 Sears Tower
233
S. Wacker Drive
Chicago,
lL 60606-6404
Dr. Thomas J. Murphy
2325 N. Clifton St
Chicago,
lL 60614
Cathy Hudzik
City
of Chicago
Mayor's Office ofIntergovernmental Affairs
121 North LaSalle Street, Room 406
Chicago,
lL 60602
Stacy Meyers-Glen
Openlands
Suite 1650
25 East Washington
Chicago, lL 60602
[00004662.DOC)
5
Marc Miller
Jamie
S. Caston
Office
of Lt. Governor Pat Quinn
Room 414 State House
Springfield,
lL 62706
Sharon Neal
Commonwealth Edison
125 South Clark Street
Chicago,
lL 60603
Margaret P. Howard
Hedinger Law Office
2601 South Fifth Street
Springfield,
lL 62703
James
Huff
Huff
&
Huff, Inc.
915 Harger Road, Suite 330
Oalc Brook, lL 60523
Fredric P. Andes
Carolyn
S. Hesse
David
T. Ballard
Barnes
&
Thornburg LLP
I N Wacker Dr, Suite 4400
Chicago,
lL 60606
Beth Steinhorn
2021 Timberbrook
Springfield,
lL 62702
Traci Barldey
Prairie Rivers Networks
1902 Fox Drive, Suite 6
Champaign,
lL 61820
Susan Hedman
Andrew Annstrong
Environmental Counsel
Environmental Bureau
Suite 1800
69 West Washington Street
Chicago,
lL 60602
Electronic Filing - Received, Clerk's Office, June 26, 2008
BEFORE TI-IE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
WATER QUALITY STANDARDS AND
EFFLUENT LIMITATIONS FOR THE
CHICAGO AREA WATERWAY SYSTEM
AND THE LOWER DES PLAINES RIVER:
PROPOSED AMENDMENTS TO 35
Ill.
Adm. Code Parts 301, 302, 303 and 304
)
)
)
)
)
)
)
)
R08-9
(RuIemaking - Water)
MIDWEST GENERATION'S MEMORANDUM IN SUPPORT OF MWRDGC'S
MOTION TO STAY
Pursuant to
35 Ill. Adm. Code 101.514, Midwest Generation,
L.L.
C. ("Midwest
Generation" or "MWGen"), respectfully submits this Memorandum in Support
of the
Metropolitan Water Reclamation District
of Greater Chicago's ("MWRDGC" or "District")
Motion to Stay. Midwest Generation states
as follows:
I.
INTRODUCTION
Midwest Generation actively participated during the years that the Agency held
stakeholder meetings conceming the Use Attainability Analyses
("UAN') for the Chicago Area
Waterways Systems ("CAWS") and the Lower
Des Plaines River ("LDP"), particularly on use
designation and thennal issues. After a gap
of a few years after the stakeholder meeting process
ended, Midwest Generation also
is now actively participating in the hearings on the proposed
UAA rules.
Based on its extensive participation in this UAA process, Midwest Generation
shares the District's concern that Illinois EPA'sproposal is fundamentally flawed and cannot be
supported based on the many factual gaps
and faulty assumptions that make up the
administrative record. As evidenced by the testimony
of the Agency's witnesses, the Illinois
EPA's development
of the proposed rules was impaired by certain fundamental problems,
including the Agency's failure to meaningfully consider the stakeholders' input regarding,
inter
Electronic Filing - Received, Clerk's Office, June 26, 2008
alia,
the need to obtain and review relevant data relating to major constraints limiting the
attainable uses for the subject waterways, the Agency's failure to consider the technical
feasibility and economic costs
of the proposed rules it ultimately filed with the Board, and its
failure
to consider any alternative approaches to its proposed thennal water quality standards.
For example, despite Midwest Generation's August
2007 submission of a detailed, statistically-
sound alternative thermal standards methudulugy and proposed numerical standards for the
Upper Dresden Island Pool ("UDP"), the Agency admitted during the hearings that it did not
review Midwest Generation's submission. Moreover, the Agency failed to consider
20 years of
fish survey data collected from the UDP and within its possession, data which the Illinois EPA
and its thennal consultant Chris Yoder agree are important in assessing use attainment.
The testinl0ny also has revealed the complete absence
of review of key data or analysis
regarding environmental stressors, such as extensive fish survey data, QHEI data,
as well as
available sediment chemistry and quality data, that is fundamental to the Agency's decisions on
use designations and ultimately whether the Agency'sproposal is reasonable and defensible. For
example, despite the lack
of sediment data, IEPA speculated during the hearings that sediment
quality
is improving, and is using such speculation as a basis for the Agency's core beliefthat the
UDP can attain the Clean Water Act's goal
of "fishable and swimmable."
Midwest Generation submits that setting a precedent
of moving allead with this
significant
rule-maldng when the Agency's supporting record suffers from so many key
deficiencies is not beneficial to the Board, to the Agency or to the interested members
of the
public. Midwest Generation recognizes and accepts that it bears the burden and expense
of
presenting its views on tins rule-malting to the Board. However, due to the many omissions in
the Agency's development
of the underlying record here, that burdcn has bccome unreasonable.
A stay would allow the Agency an opportunity
to complete the work, including hopefully re-
{00004662.DOC)
2
Electronic Filing - Received, Clerk's Office, June 26, 2008
initiating the long ago terminated stakeholder process that should have been performed before
these rules were filed with the Board. A pause in the proceedings we believe would result in a
more stream-lined, cost-effective and less time-consuming rule-making process before the
Board.
Because the Agency's selective consideration
of limited data related to the UDP did not
become evident
UIltil its testimony before the Board in these proceedings, Midwest Generation is
trying to address those gaps. Midwest Generation is working to: gather, review and analyze data
that the Agency has ignored; address gaps in the more recently collected but limited data that the
Agency has presented here; and prepare to present a more complete data set and analysis to the
Board. Due
to the weatller conditions this year, field work to collect additional field data to
provide a more complete picture of current conditions in the UDP has been delayed and some of
this work also must await summer seasonal conditions tlmt will not be present until July. This
new field data will have a direct bearing on the Agency's use designation decisions.
A stay would allow the necessary time
to collect and carefully review current data as
opposed to the press of tlle August 4, 2008 deadline for pre-filed testimony on use designation
issues.
It
also would allow tlus data to first be presented and discussed with tlle Agency and
other stakeholders outside
of the formal constraints of a rule-making proceeding in the hope that
it may lead
to resolving, or at least narrowing, the many disputed UAA issues currently before
tlle Board. Midwest Generation believes it would be beneficial to the Agency and the integrity
of the Agency's decision-making process to provide tlle Agency adequate time to consider and
discuss the additional data outside
ofthe context ofthe rule-maldng proceeding.
Consequently, Midwest Generation concurs with tlle District's position that !EPA's
rulemaldng efforts are filled ,vith significant gaps and receiving additional data from the
stal(eholders would be important for the Agency
to consider in its decision-making process.
[00004662.DOC)
3
Electronic Filing - Received, Clerk's Office, June 26, 2008
II.
DEFICIENCIES IN IEPA'S PROPOSAL
The hearing testimony has revealed a significant lack of data, information and analysis
regarding the assessment
of the economic and social impacts that will resnlt from Illinois EPA's
proposed thermal water quality standards, including the following:
• Illinois EPA failed to conduct any economic analysis
of its proposed thermal standards on all
effected parties within the CAWS (January 28 Hearing, transcript at p. 53);
• Illinois EPA failed to consider the costs to industrial dischargers along the UDP
to comply
with the proposed thermal standards (March
10 Hearing, transcript at pp. 24-26);
• Illinois EPA's only basis to conclude that cooling towers are economically reasonable was
premised on the fact that such technologies are available and have been used elsewhere,
despite the fact that no facilities within Illinois have ever been retrofitted with cooling towers
(January
28 Hearing, transcript at pp. 53-54, 86; March 10 Hearing, transcript at p. 38);
• Illinois EPA failed to discuss the economic impacts to dischargers to the CAWS in the Lower
Des Plaines and how long it would take for those dischargers to obtain, install, and test
control equipment necessary to comply with
IEP
A's proposal (March 10 Hearing, transcript
at
p. 79);
• Illinois EPA admitted
to not lmowing whether its proposal would result in "substantial and
widespread economic and social impact" under the 40 C.F.R. Section 131.10
of the federal
regulations
(i.e.,
UAA Factor 6), because it did not have the data to do so (March 10 Hearing,
transclipt at
p. 39);
• Illinois EPA admitted to not knowing whether or not UAA Factor 6 would apply
to the UDP
(January
28 Hearing, transcript at p. 100); and
{00004662.DOC)
4
Electronic Filing - Received, Clerk's Office, June 26, 2008
• Illinois EPA did not request any data from the dischargers regarding the potential costs of
cooling towers, despite the fact that the Agency agreed that such information would have
been valuable to its
decision-mal<.ing process (January 29 Hearing, transcript at pp. 123-124).
The testimony further reveals significant deficiencies in the collection
of environmental
data and information that,
if collected and analyzed, would contribute significantly to the
decision-making process, including
the following:
• Illinois EPA admitted to having huge gaps
III
sediment data to determine whether
contaminated sediments would have a limiting effect on attainment
of water quality standards
(January
28 Hearing, trmlscript at p. 98; March 10 Hearing, transcript at pp. 9, 23, and 92-
93);
• Illinois EPA conceded that sediment chemistry data would be necessary to
do a complete
evaluation
of the habitat issues for aquatic life in the CAWS, but admitted that it did not
consider sediment chemistry data in
mal<.ing its habitat evaluation (February 1 Hearing,
transcript at
p. 182);
•
111inois EPA conceded that it cannot make a definite distinction between legacy sediment and
recent sediment (January 29 Hearing, transcript at
p. 183);
•
111inois EPA has failed to explain why habitat impacts from extensive channelization and
barge traffic - which the Board in the
AS 96-10 proceedings concluded overrode the effect of
temperature below I-55 - do not override the effects of temperature for the UDP (January 28
Hearing, transcript at pp. 127-134);
•
111inois EPA failed to consider any non-water quality environmental impacts from its
proposal, including air emissions and impact to
air
quality that would result from the
construction
of cooling towers (March 10 Hearing, transcript at pp. 26-28, 34); and
(00004662.DOC)
5
Electronic Filing - Received, Clerk's Office, June 26, 2008
• Illinois EPA admitted it did not assess other significant environmental stressors, including
the number
of combined sewer overflows ("CSO") bacteria sources, or municipal separate
storm sewer system ("MS4") sources to the CAWS, even though they may be significant
contributing sources (April
23 Hearing, transcript at pp. 76-77, 79).
The testimony has also revealed Illinois EPA's approach
is deficient in many other
material respects, including its failure
01' Ullwillingness to consider other data and alternative
approaches:
• Illinois EPA's consultant,
Mr. Yoder, stated that, although he was aware of the 20 years of
stream survey data related to fish studies for the UDP, he was not provided the data and,
therefore, did not factor it into his analysis (January 30 Hearing, transcript at pp. 83-84);
• Illinois EPA's consultant,
Mr. Yoder, was aware of the August 2007 EA report submitted to
the Agency by Midwest Generation, but admitted to not reviewing the several years
of fish
studies data, because
it was "outside the scope of [his] task", (January 30 Hearing, transcript
at pp. 86-87), despite agreeing to the importance
of field data in assessing thermal conditions
(ld.
at 92 and 97);
• Illinois EPA's consultant,
Mr. Yoder, conceded that his fish temperature ranking approach to
establish thermal water quality standards had not been used outside
of Ohio, and that there
were other methodologies available to be used; however, neither Mr. Yoder nor IEPA
considered any other alternative methodologies (January 30 Hearing, transcript at
p. 76);
• Illinois EPA admitted to being aware of how other states developed thermal water quality
standards, such as Colorado, yet failed to meaningfully consider these alternative approaches
(March
10 Hearing, transcript at pp. 121-123);
{00004662.DOC)
6
Electronic Filing - Received, Clerk's Office, June 26, 2008
• Illinois EPA's consultant, Mr. Yoder, acknowledged that his fish temperature model does not
account for other biotic factors such as population, community, and/or food-web interactions,
although he agreed such factors are important (January 30 Hearing, transcript at
p. 188);
• Illinois EPA did not provide stakeholders an opportunity for input into the Agency's list
of
representative fish species, despite the fact that Illinois EPA's consultant, Mr. Yoder,
concluded that giving the public such an opportunity would have been important (January
31
Hearing, transcript at pp. 201-202);
• Illinois EPA's consultant,
Mr. Yoder, conceded that he was not sufficiently versed with U.S.
EPA's guidance on the development
of water quality standards to say whether his approach
satisfied U.S. EPA's quality assurance protocols (January
31 Hearing, transcript at pp. 60-
62);
• Illinois EPA's consultant,
Mr. Yoder, agreed that his methodology had not been embraced or
endorsed by U.S. EPA in any national publication or criteria document (January
31 Hearing,
transcript at
p. 214);
• Illinois EPA failed to consider tlle requirements
of section 303(g) of tlle Clean Water Act
pertaining
to federal water quality standards for thermal discharges (January 28 Hearing,
transcript at
p. 112); and
• Illinois EPA admits that its approach to establishing designated uses
is not based on tiered-
aquatic life uses, which
is an approach recommended by the U.S. EPA, especially to address
modified water bodies such
as CAWS (March 10 Hearing, transcript at p. 121).
III.
A STAY
WOULD ALLOW
FOR ILLINOIS
EPA'S CONSIDERATION
OF
FORTHCOMING RELEV.ANT STUDIES AND STAKEHOLDER INPUT
It
is certainly not uncommon in rule-making proceedings to identif'y areas where
additional data and information would be helpful
to the Board and the participating parties.
In
{00004662,DOC)
7
Electronic Filing - Received, Clerk's Office, June 26, 2008
that regard, the mere existence of any "information gaps" is not in and of itself grounds for a
stay. However, as detailed above, the extent and magnitude
of the info=ational gaps and
deficiencies here is far greater than is typically the case in a petition for significant new rules
presented
to the Board by the Agency.
'TIle inadequacy of the record here is also contrary to the intent of the UAA regulation.
The UAA regulation sets furth
~ix
factors to be considered by the Agency, anyone of which if
satisfied supports a finding that the appropriate use designation is not a fishable standard under
the Clean Water Act. The UAA regulations
do not contemplate or encourage a regulatory
approach that fails to conduct an adequate review
of the UAA factors in order to reach an
unsubstantiated conclusion that none have been satisfied. That approach undermines principles
of fundamental fairness in governance. The Agency should not have failed to collect and review
data that could have shown that one or more
of the six UAA factors is satisfied for the Upper
Dresden Island Pool. To shift
tillS gove=ental obligation to the regulated community and to
the Board,
as is tile current state of tllis rule-making record, is neither reasonable nor consistent
Witll tile intent of tile Clean Water Act. However, as past history cannot be undone, the current
situation can at least be ameliorated going forward by the entry
of a stay. Entering a stay to
allow tile necessary time for interested parties
to collect and present at least some of tile missing
and critical
info=ation to fill the gaps in the current administrative record is an appropriate and
fair response to the incomplete administrative record currently before the Board.
In
addition, as the extensive questioning of Agency witnesses has shown, tllere was
limited opportunity for tile Agency and stalceholders to engage
on key issues and questions after
the Agency presented its UAA rules proposal to
tile public in March 2007. By the Agency's own
testimony, any alternative approaches, such as the Midwest Gcneration alternative approach to
the=al standards submitted in August 2007, were not considered because they were deemed to
{00004662.DOC}
8
Electronic Filing - Received, Clerk's Office, June 26, 2008
be too late. For this reason, Midwest Generation suggests that the Board in granting a stay,
should also direct the Agency to re-initiate the stakeholder process
so that an attempt can be
made
to reduce the amount of time and resources devoted to this rule-malcing upon its
resumption.
WHEREFORE, Midwest Generation respectfully supports the Motion for Stay filed by
the District. Midwest Generatiun also submits that the Board should mandate that during any
stay granted by the Board, the Illinois EPA re-initiate the stakeholder process that was
terminated prior to the Agency's presentation to the stakeholders
of its UAA decisions and
followed subsequently by the initiation
of this rulemalcing.
Respectfully submitted,
MIDWEST GENERATION, L.L.C.
~11t~?f4y
Susan Franzetti
Date: June 26, 2008
Susan
M. Franzetti
Nijman Franzetti LLP
10 S. LaSalle St., Suite 3600
Chicago, IL 60603
(312) 251-5590 (phone)
(312)
251- 4610 (fax)
Kristy
A.
N. Bulleit
Brent Fewell
Hunton
&
Williams, LLP
1900
K. Street, NW
Washington, DC 20006
(202) 855-1500 (phone)
(202) 778-7411 (fax)
[00004662.DOC}
9
Electronic Filing - Received, Clerk's Office, June 26, 2008