BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~~E

C~FRK’S

~4IAR

OF

20

0E

ILLINOiS2001

~

Pal u

iofl

ContrOl BoOTd

IN THE MATTER OF:

REVISIONS TO ANTIDEGRADATION

RULES: 35 ILL. ADM. CODE 302.105,

303.205,

303.206, AND 106.990

—

106.995

)

)

RO1-13

)

(Rulemaking)

NOTICE OF FILING

TO:

Ms. Dorothy M. Gunn

Clerk of the Board

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph Street

Suite

11-500

Chicago, Illinois 60601

(VIA AIRBORNE EXPRESS)

Marie B. Tipsord, Esq.

Hearing Officer

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph Street

Suite

11-500

Chicago, Illinois 60601

(PERSONS ON ATTACHED SERVICE LIST)

PLEASE TAKE NOTICE that I have filed today with the Clerk of the Illinois

Pollution Control Board an original and nine copies of

POST-HEARING COMMENTS

OF THE ILLINOIS ENVIRONMENTAL REGULATORY GROUP,

copies of

which are herewith served upon you.

Respectfully submitted,

ILLINOIS

ENVIRONMENTAL

REGULATORY GROUP,

By:_____________________

fIts Attorneys

Dated: March 19, 2001

Katherine D. Hodge

HODGE

& DWYER

3150 Roland Avenue

Post

Office Box

5776

Springfield,

Illinois 62705-5776

(217)

523-4900

Karen L. Bemoteit

Illinois Environmental Regulatory Group

215 East Adams Street

Springfield, Illinois 62701

(217) 522-5512

)

THIS FILING SUBMITTED ON RECYCLED PAPER

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REC. VED

Cl

Frz’V’ f~r!CE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD MAR 20 2001

IN THE MATTER OF:

STATE OF ILLINOIS

Pollution Control Board

)

REVISIONS TO ANTIDEGRADATION

)

ROl-13

RULES: 35 ILL. ADM. CODE 302.105,

)

(Rulemaking)

303.205, 303.206,

AND 106.990

—

106.995

)

THE ILLINOIS ENVIRONMENTAL REGULATORY GROUP

NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP

(“IERG”), by one of its attorneys, Katherine D. Hodge of HODGE & DWYER, and

submits its Post-Hearing Comments in the above-captioned matter to the Illinois

Pollution Control Board (“Board”), stating as follows:

I.

INTRODUCTION

As the Board is aware, the regulations at issue in this rulemaking are the

culmination

of a two-year process ofconsideration by the Illinois Environmental

Protection Agency (“Agency” or “Illinois EPA”), the regulated community, the

“Environmental Groups,

‘‘1

and other interested participants, regarding how best to protect

the surface waters

ofIllinois from degradation. IERG appreciates the opportunity to

participate in this process, and appreciates the efforts that all parties to this rulemaking

have made.

Based on the testimony at hearing, and a review of the transcripts and written

testimony, it

is clear that all participants agree the Agency must have flexibility in

conducting antidegradation reviews. Not every proposed increase in loading should be

subjected to the same depth and degree ofantidegradation review. IERG strongly

The Environmental Law and Policy Center of the Midwest; Friends ofthe Fox River, Prairie Rivers

Network; and the Illinois Chapter of the Sierra Club, (hereinafter collectively “Environmental Groups.”)

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supports Agency flexibility in the process, and believes that the revisions IERG has

proposed to the Agency’s proposed Section 302.105 achieve this goal in the clearest,

most workable manner.

IERG has consistently emphasized five specific areas of concern regarding the

Agency’s proposal during this proceeding. Two of these areas ofconcern specifically

address the need for flexibility during the course ofan antidegradation review:

1.

the Agency’s proposal does not contain a significance test to be used to

determine the need for a comprehensive antidegradation review; and

2.

the Agency’s proposal requires extensive up-front data submissions from

an applicant for a National Pollutant Discharge Elimination System

(“NPDES”) permit or Section 401 certification, which extensive

submissions may not be necessary.

Related to the Agency’s ability to be flexible in its antidegradation review

procedures is the need for the Agency to target its efforts and resources so as to review

those proposed loadings that have true potential to pose a threat to the quality ofwater in

Illinois. Two issues raised by IERG during the course of this proceeding speak to this

concern:

3.

the Agency’s proposal does not contain needed exceptions to the

individual demonstration required

by the proposed Board standard; and,

4.

the Agency’s proposal lacks clarity as it relates to definitions of some of

the provisions and terms proposed.

Finally, also at issue during this proceeding has been the process by which the

Board will

designate surface waterbodies as “outstanding surface waters,” or “ORWs.”

While all participants agree that waters that meet certain criteria should be granted ORW

status, IERG has been the primary participant in this rulemaking to recognize that

designating a water body as an ORW will have severe, far-reaching consequences. Early

2

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in the Illinois EPA’s regulatory development process, IERG articulated its concerns

regarding ORW designation. The final issue raised by IERG in th6 context ofdeveloping

and implementing an antidegradation review process addresses this concern as follows:

5.

the Agency’s proposal does not contain sufficient requirements for ORW

designations.

As stated in its December 6, 2000, testimony, IERG is fully aware that the Clean

Water Act requires antidegradation reviews in certain cases. We do not seek to dispute

that principle, but to comment on the procedures with which both the Agency and the

regulated community must

comply if the goal of the antidegradation standard is to be

achieved. Therefore, IERG has proposed revisions to the Agency’s proposed Sections

302.105 and 303.205 to ensure that all affected parties will have fair, clear and workable

regulations to guide their efforts and actions. We respectfully ask the Board to favorably

consider our

recommendations.

II.

THE AGENCY MUST BE ABLE TO EXERCISE FLEXIBILITY IN THE

ANTIDEGRADATION REVIEW PROCESS BY INCORPORATING A

SIGNIFICANCE DETERMINATION INTO ITS PROCEDURES AND BY

ELIMINATING REQUIREMENTS FOR EXTENSIVE UP-FRONT DATA

A.

Significance Determination

As noted above, all participants to this rulemaking agree that all increases in

loading should not be subjected to the same depth and degree ofantidegradation review.

The Agency has indicated that it can be flexible in conducting antidegradation reviews by

choosing whether to enforce the antidegradation regulations on a “case by case” basis.

~,

~

November 17, 2001, Hearing Transcript, at 72. The Environmental Groups

have stated that they have “considerable misgivings” regarding this approach, but that

3

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they are “willing to try [it] for now.” Environmental Groups’ Memorandum of Law, at

17.

As IERG has demonstrated to the Board previously in its filed testimony and

presentation before the Board, however, the language that the Agency has proposed

simply does not

allow the Agency to conduct anything other than a comprehensive

antidegradation review for every increase in loading.

~

~

December 6, 2000,

Hearing Transcript, at 90 (Testimony of Deirdre K. Hirner); January 18, 2001, Prefiled

Testimony of Frederic P. Andes, at 4. In order to address this problem, IERG has

proposed amending the Agency’s proposed Section 302.105 to provide for a significance

review option in antidegradation reviews. A siguificance review would not take place in

every case, but rather only when the permit applicant asked the Agency to conduct such a

review. As noted in IERG’s February 6, 2001, testimony, implementing the

antidegradation review process in this tiered fashion would first allow a determination of

whether a proposed action is of such significance that all five components ofthe full

antidegradation review proposed by the Agency would need to be addressed. Ifnot, the

finding of insignificance would, in and of itself, constitute an appropriate antidegradation

review.

Under the Agency’s proposal, it would be required to assess every proposed

increase in loading relative to the following issues:

1.

“the fate and effect of any parameters proposed for an increased

pollutant loading”;

2.

whether “[t]he applicable numeric or narrative water quality

standard [will] be exceeded as a result

ofthe proposed activity”;

3.

whether “[aill existing uses [will] be fully protected”;

4

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4.

whether “all technically and economically reasonable measures to

avoid or minimize the extent ofthe proposed load increase have

been

incorporated into the proposed activity”; and,

5.

whether “the activity that results in an increased pollutant loading

[will] benefit the community at large.”

Agency’s proposed Section 302.1 05(c)(2).

IERG’s proposed significance review would, alternatively, provide that the

Agency would first assure that all existing uses would be fully protected and that water

quality

standards would not be exceeded. Under IERG’s proposal, if necessary to

complete a viable assessment, the Agency would be authorized, at its discretion, to

consider the following factors as well:

a)

the volume, constituents, and concentrations ofparameters in the

proposed increase in pollutant loading;

b)

the nature ofthe proposed increase in pollutant loading, including

location ofthe discharge, and timing and physical characteristics of

the discharge; and

c)

the nature and condition ofthe receiving water, including existing

water quality characteristics, the chemical and physical

characteristics ofthe water and ofthe water body, and any relevant

biological, chemical, or physical characteristics ofthe water which

will

affect the impact ofthe proposed increase in pollutant loading

upon the waterway.

IERG’s Proposed Amended Section 302.

105(c)(2)(A)(iii).

The Agency has noted that it does not wish to engage in a significance review

process that is more burdensome than the antidegradation review that it has proposed in

this proceeding. See November 17, 2000, Hearing Transcript, at 82 (Testimony ofMr.

Toby Frevert). IERG does not believe that its proposed significance determination would

impose any additional burden on the Agency. Rather, in making a significance

determination, the Agency would simply be performing part of the analysis that it would

S

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have to perform when conducting a full antidegradation review, as the above-mentioned

factors are among those reviewed when considering “the fate and effect ofany

parameters proposed for

an increased pollutant loading.” Further, permit applicants

would be required to submit similar information under the Agency’s draft Sections

354.103(a) and (b).

Ifthe Agency determined that the proposed increase in loading was not

significant, the Agency would not conduct a further review ofthe proposed increase. If

the Agency determined that the proposed increase was significant, the Agency would

proceed to examine alternatives to the proposed increase, and the anticipated benefits of

the increase that would accrue to the community at-large. It is the analyses ofthese two

components of the antidegradation review process that the regulated community believes

have the greatest potential to adversely impact the timing relative to issuing an NPDES

permit.

As we stated during the February 6, 2001, hearing, many of our industrial

members experience a two to three-year lag time in the Agency’s ability to take action on

NPDES renewal permit applications. February 6, 2001, Hearing Transcript, at 11-12

(Testimony ofDeirdre K. Hirner). The Agency’s inability to process current permit

applications

due to a lack of sufficient staff resources can only worsen with the increased

requirement ofcomprehensive antidegradation reviews. IERG strongly believes that the

inclusion ofa significance determination in the proposed rule will allow the proponents

of proposed discharges and the Agency to protect water quality by focusing their time

and resources on those increased loadings that truly are “significant.”

In the process ofdeveloping its significance determination proposal, IERG

closely studied the

“Antidegradation Implementation” practices suggested by USEPA’s

6

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Region VIII 1993 Guidance Document, a copy of which has been provided previously to

the Board. IERG also was able to determine that the states ofWisconsin (Wis. Admin.

Code

§

NR 207.04) and Minnesota (Minn. R. 7050.0 185) provide for a significance

determination. Further, the state of Massachusetts has a significance review option

similar to the one IERG has proposed. In Massachusetts, “[l]imited degradation may be

allowed by the Department where it determines that a new or increased discharge is

insignificant because it does not have the potential to impair any existing or designated

water use and cause any significant lowering of water quality.” Mass. Regs. Code tit.

314,

§

4.04(2) (emphasis added). IERG believes these examples provide solid evidence

that a significance determination is not only a workable review option, but is an option

that has been approved by USEPA.

The Agency has expressed that its intent is not to do what proposed Section

302.105(c) says it must do, that is, conduct a full antidegradation review in every case.

Accordingly, proposed Section 302.105(c) (and draft Part 354) should be revised to

express the Agency’s true intent

—

flexibility

—

through a significance determination

option.

B.

Up-Front Data Submissions

As proposed by the Agency, an applicant for an NPDES permit or 401

certification seeking an increase in loading would be required to submit all data stipulated

in the rule to demonstrate the consequences ofa proposed loading. It is the Agency, and

not the applicant, however, that is charged with determining whether degradation will

occur and, if so, whether it may be warranted to accommodate economic or social

development. Throughout this process, IERG has continually maintained that the

7

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Agency, indeed, must have the information it needs to thoroughly make its

antidegradation determination. However, the regulated community is aware that much of

the required information is currently in the possession of the Illinois EPA. Therefore,

throughout the antidegradation regulatory development process, JERG has emphasized

the

necessity ofproviding flexibility in the regulation so as to allow the Illinois EPA to

utilize data in its possession, or to which it has ready access, to conduct an

antidegradation assessment rather than requiring extensive up-front submissions ofdata

from a permit applicant. This, we believe, will avoid wasteful efforts that place an undue

burden on an applicant to acquire and provide what could constitute voluminous

information to the Illinois EPA that, in many instances, duplicates information in the

possession of,

or readily available, to the Agency.

It is generally acknowledged that the Illinois EPA has extensive data for potential

receiving waters that have been the subject of numerous studies, and forthe larger

waterways. IERO

believes that the proposed regulation should specifically stipulate that

the Agency may rely on such data and need not require an applicant to replicate existing

information. Similarly, JERG believes that the Agency should be allowed to rely on the

collective knowledge

and expertise ofits staff when making its determinations.

IERG has continually emphasized the Illinois EPA’s proposal does not provide

for this

flexibility. Therefore, IERG’s proposal adds the following language that would

delineate the information sources the Illinois EPA can utilize in making an

antidegradation assessment:

iii)

In making its assessment, the Agency may utilize the following

information

sources:

8

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a)

Information, data or reports available to the Agency from

its own sources;

b)

Information, data or reports supplied by the applicant;

c)

Agency experience with factually similar permitting

scenarios; and/or

d)

Any other valid information available to the Agency.

JERG’s proposed Amended Section 302.105 (c)(2)(b)(iii).

Again,

it is IERG’s belief that inclusion ofthis language will allow the Illinois

EPA to achieve its expressed intent when conducting antidegradation reviews

—

that is, to

look at proposed increased loadings on a case-by-case basis, requiring the submittal of

only that information necessary to conduct a thorough review. As stated in the

February 6, 2001, testimony by Mr. JeffSmith, on behalfof IERG, requiring a permittee

to provide information without consideration ofwhether the Agency already possess it

will, at minimum, delay the

application process. At worst, the expense ofcollecting

unneeded data and associated delays could undermine a project’s viability.

Further in this regard, and as noted by Deirdre K. Hirner during her testimony at

the February

6, 2001, public hearing, IERG believes that revisions to the Agency’s

proposed Part

354

are necessary. IERG understands that proposed Part

354

was not

intended to be part of this proceeding. However, after further consideration, and for the

reasons stated below, IERG believes it is necessary to incorporate the procedures in

proposed Part 354 into the proposed Section 302.105. Accordingly, we have amended

our proposed revision to the Agency’s proposed Section 302.105 to incorporate these

procedures, and have attached our amended proposed revision hereto as Exhibit A.

Please note that IERG has, for the most part, merely inserted the Agency’s proposed

9

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language as a “placeholder” into a new subsection 302. 105(c)(3); further revisions may

well be necessary to fully incorporate these procedures into a Board rule.

We believe that the manner in which the Agency requests information from an

applicant, reviews that information, and makes the results ofits assessment known to the

public

is inextricably linked to achieving the antidegradation standard. IERG’s most

significant revision to these procedures, as proposed by the Agency, would be to the

“Required

Information for Antidegradation Review,” which again we believe would

require every proponent of an increase in loading to submittal ofall the data listed

therein. Under LERG’s proposal, the information to be provided by a permit applicant

“for any proposed increase in pollutant loading that necessitates a new, renewed, or

modified NPDES permit, with a new or increased permit limit, or a CWA Section 401

certification,” is on that information that is necessary forthe Illinois EPA to determine

whether any increase in pollutant loading or proposed activity would result in degradation

ofthe receiving water. IERG supports providing the Agency the information it needs to

do its job, and assuring that the public has access to the results of an antidegradation

assessment in which it can have full confidence, and believes that this provision

accomplishes that goal.

III.

BY RELYING ON FURTHER EXCEPTIONS TO THE

ANTIDEGRADATION REVIEW REQUIREMENT AND ENSURING

A.

Further Exceptions Needed

By including six exceptions to the antidegradation review requirements in its

proposal, the Agency has recognized that activities that are in compliance with other

applicable laws or which improve water quality need not be subject to an antidegradation

10

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review. IERG believes additional exceptions warrant inclusion in the proposal. As stated

in our previous testimony, IERG firmly believes that the inclusion of such exceptions

allows the Agency to avoid the review ofpermits that have virtually no environmental

impact and, thus, to expend its resources where truly needed.

First, the Board should revise the Agency’s exception for non-contact cooling

water discharges so that it applies to non-contact cooling water with additives where “the

Agency has approved the use

of any additives present in [the] specific discharge.”

IERG’s Proposed Revised Section 302.

105(d)(5).

At the time the Agency approved the

use

of additives for such discharges, itwould have made the assessment that the additive

had no potential to adversely impact water quality. In essence, the antidegradation

determination has been completed, and additional review under the provisions of Section

302.105 would be duplicative.

Second, the Board should include an exception for “[c]hanges to or inclusion ofa

new permit limitation that does not result in an actual increase ofa pollutant loading.”

IERG’s Proposed Revised Section 302.

105(d)(7).

Such a circumstance could arise due to

the availability ofimproved monitoring data, new analytical testing methods, or the

imposition ofnew or revised technology or water quality-based effluent limitations. In

such a

circumstance, however, there would be no physical change in the receiving water.

The Agency did not include the exception in its proposal based on the rationale that it is

not necessary, stating: “since the Agency believes there is not load increase, the matter is

not subject to the anti-deg rule.” See Agency Memorandum dated June 14, 2000,

Attachment

5,

paragraph 1 (a copy ofwhich is attached hereto as Exhibit B). IERG,

11

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however, believes it is better to explicitly state this exception in the regulation so there

will

be no uncertainty as to whether this situation triggers an anti-degradation review.

Third, the Board should also include an exception for “[s]ite stormwater

discharges covered by

a Stormwater Pollution Prevention Plan (SWPPP), as required in

an individual NPDES permit, provided that the discharge will not cause or contribute to a

violation

ofIllinois water quality standards.” IERG’s Proposed Revised Section

302.1

05(d)(8).

Non-stormwater waste streams discharged together with stormwater

subject to contamination from outdoor industrial activities are regulated in an industrial

facility’s individual NPDES permit through the SWPPP and/or specific federal

categorical limitations (for certain industries). The NPDES permit requires the facility to

develop a SWPPP, which requires, among other things, the implementation of best

management practices.

In instances where site development or construction could increase stormwater on

site, it could be argued that an additional antidegradation review would be necessary for

each outdoor plant modification or construction activity, although it has already been

taken into consideration at the time the SWPPP was developed. JERG’s proposed

exception seeks

to avoid any confusion regarding the need for duplications. The

exception also seeks to avoid the unintended dilemm~f the potential for increased

precipitation, an event over which an industrial facility has no control, to trigger the need

for an

antidegradation review at the time ofNPDES permit renewal.

Fourth, the Board should also include an exception for “[niew or increased

discharges ofa pollutant where the permit applicant has made a contemporaneous and

enforceable decrease in the actual loading ofthat pollutant at the source such that there is

12

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no net increase in the loading of that pollutant into the same surface water body or

surface

water body segment.” IERG’s Proposed Revised Section 302.105(d)(9). As

discussed at the Third Hearing, such discharges do not increase the quantity ofa pollutant

discharged into a water body, so they pose no additional threat to water quality. In

choosing to exclude this exception from its proposal, the Agency’s rationale

acknowledged that offsets, internal to an individual permittee, may require a permit

modification to reflect the changed

operating conditions, but stated that if the change

would not constitute a load increase, antidegradation would not apply. See Agency

Memorandum dated June 14, 2000, Attachment

5,

paragraph 9. Again, IERG believes it

is better to explicitly state the exception in the regulation so there will be no uncertainty

as to whether this situation triggers an antidegradation review.

Fifth, the Board should also include exceptions for discharges “authorized by a

site-specific

regulation, adjusted standard, or variance issued by the Board,” or “by a

Consent Order or

Consent Decree entered by a court of competentjurisdiction.” IERG’s

Proposed Revised Sections 302. 105(d)(10), (11). The Agency has indicated that “[i]f the

Board

specifically authorizes a load increase through its own action[,] the Agency will

not nullify

any provision of that order through application ofanti-degradation. The

Board order itself will constitute either compliance with or exception from the action at

hand.” Agency Memorandum dated June 14, 2000, Attachment

5,

paragraph 6. Again,

IERG recommends explicitly stating the exception to avoid unnecessary uncertainty.

Further, we believe it is important to note, the Agency has no authority to review a Court

Order authorizing a discharge.

13

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Finally, the Board should include an exception for de minimis discharges that use

less than ten percent (10%) of a receiving water body’s assimilative capacity. IERG’s

Proposed Revised Section 302.105(d)(12). As IERG has noted to the Board, the United

States Environmental Protection Agency (“USEPA”) has endorsed the use of a ten

percent (10%) de minimis exception from antidegradation review requirements, stating:

EPA and the Great Lakes States and Tribes believe that the 10 percent

value chosen as the threshold represents a

reasonable balance between the

need

to the regulatory agencies to limit the number of actions involving

non-BCCS that are subjected to the detailed antidegradation demonstration

requirements and the need to protect and

maintain water quality. In

particular, it is believed that any individual decision to lower water quality

for non-BCCs

that is limited to 10 percent ofthe unused assimilative

capacity represents minimal risk to the receiving water and its ability to

support all existing uses.

Proposed Water Quality Guidance for the Great Lakes System,

58

Fed. Reg. 20802,

20903 (April 16, 1992) (emphasis added)2.

Further, the USEPA has approved the use ofa de minimis exception for every

other state in USEPA’s Region V, as follows:

2

Copies of all portions of the Federal Register, of statutes, or of regulations cited in these Comments

are

attached hereto as Exhibit C for the Board’s convenience.

14

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STATE

DE MINIMIS

LEVEL

CITATION

USEPA

APPROVAL

Indiana

10%

Ind. Admin. Code tit. 327, r. 5-

2-li .3(b)(1)(B)(ii)

65 FR 47864-01

Michigan

10%

Mich. Admin. Code r.

323. 1098(9)(c)3

65 FR 47864-01

Ohio

10%~

Ohio Admin. Code § 3745-1-

05 (D)( 1 )(b)(i)

65 FR 47864-01

Wisconsin

33%5

Wis. Admin. Code § NR

207.05(4)(a)(l)

65 FR 66502-02

Minnesota

see footnote6

Minn. R. 7050.0 185(2)(G)

65 FR 48517-01

States in other parts of the country also provide for a de minimis exception to

5

their antidegradation review requirements, including New Hampshire7 and Texas

It is IERG’s understanding that amendments to Michigan’s water quality standards will be proposed in the

near future. A copy ofthe proposed amendments is not available at this time, but it is IERG’s

understanding, based on conversations with the Michigan Department of Environmental Quality, that the

proposed amendments will not affect Michigan’s 10% de minimis exception.

‘~

Ohio has several categories of “high quality waters.” “General high quality waters” correspond to the

high quality water designation proposed by the Agency in proposed Section 302.105(c); “superior high

quality waters,” are waters at a level somewhere between “high quality water” and ONRW. See Ohio

Admin. Code § 3745-1-05(A)(9). The de minimis cutoff for “general highquality waters” is 10%. Ohio

Admin. Code § 3745-1-05(D)(1)(b)(i). The de minimis cutoff for “superior high quality waters” is 5%.

Ohio Admin. Code § 3745-1-05(D)(1)(b)(ii).

~Wisconsin provides for a 33% de minimis cutoff for “indicator parameter[s] other than dissolved

oxygen.” Wis. Admin. Code § NR207.05(4)(a)(1). Dissolved oxygen is subject to a different fonnula.

See Wis. Admin. Code § NR 207.05(4)(a)(2).

6

Minnesota provides for a de minimis exception (which it refers to as “significance”), but rather than

defining de minimis by the amount ofassimilative capacity to be used by an increase in loading, it defines

de minimis by the volume of the discharge increase or whether the increase contains “any toxic pollutant at

a mass loading rate likely to increase the concentration of the toxicant in the receiving water by greater than

one percent over the baseline quality.” Minn. R.

7050.0 185(2)(G)(3).

~N.H. Code Admin. R. Env-Ws 430.34(b)(4) provides for an exception from antidegradation review

procedures for increases in loading to “Class B Waters” that use less than

25%

of the receiving water’s

assimilative capacity. “Class B Waters” are in part defined as waters “acceptable for fishing, swimming

and other recreational purposes and, after adequate treatment, for use as water supplies.” N.H. Rev. Stat.

Ann. § 485-A:8(JI).

30 Tex. Admin. Code § 307.05(b)(2) (defining “degradation” as “a lowering of water quality by more

than a de minimis extent, but not to the extent that an existing usc is impaired” (emphasis added)).

15

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As discussed above, all parties agree that the Agency needs flexibility in

conducting antidegradation reviews, in order to allow it to focus its resources on those

loading increases that pose a threat to water quality. The de minimis exception, as well

as the other

exceptions discussed above, are necessary to preventthe Agency from

becoming bogged down in meaningless, resource-wasting reviews ofloading increases

that do not pose any threat to water quality.

B.

Clarity ofTerms and Provisions

Industry supports full compliance with environmental laws and regulations.

Compliance is in the best interest ofthe regulated community and the public at-large. In

order to comply with an environmental law, however, industry must have a definitive

understanding of when the law applies, and the compliance threshold must be clearly

articulated in the rules and regulations. On review ofthe Illinois EPA’s proposed

language, IERG believes this is not the case in the proceeding currently before the Board,

particularly as it relates to the trigger for an antidegradation review.

To rectify this matter, IERG has proposed a revision to proposed Section

302. 105(c)(2) to make clear that the requirements for an antidegradation review do not

apply

to all loadings “subject” to an NPDES permit. IERG offers language to provide

that a minimum threshold to trigger an antidegradation review must be related to the need

to obtain an NPDES permit and to the limit stated in the permit:

Any proposed increase in pollutant loading that necessitates a new,

renewed, or modified NPDES permit, with a new or increased permit

limit, or a CWA Section 401 certification, must be assessed by the Agency

to determine whether allowing the lowering ofwater quality is necessary

to accommodate important economic or social development.

IERG’s Proposed Revised Section 302.105(c)(2).

16

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IERG believes this language meets the goal of the antidegradation standard,

which requires that existing water uses be maintained and protected, and that waters

whose existing quality exceeds established standards be maintained in theirpresent high

quality. IERG further believes ourproposed revision reflects Mr. Frevert’s testimony at

the November 17, 2000, hearing when he indicated that the Agency’s proposed rule

would not apply “where there is no proposed increase in any pollutant parameter

activity,” and that the antidegradation review would not be required unless an applicant

filed “for an increase over and above those levels that are already authorized in your

permit.” November 17, 2000, Hearing Transcript, at 44-46 (Testimony of Mr. Toby

Frevert). Therefore, IERG would urge the Board to adopt its proposed revision.

IV.

PROCEDURES MUST BE STRENGTHENED

In addition to agreeing that all increases in loading should not be subject to the

same

level ofantidegradation review, all participants in this rulemaking agree that the

Board should establish procedures by which persons can seek designation of qualified

surface water bodies as “Outstanding Resource Waters,” or “ORWs.” The Agency has

proposed such procedures (see the Agency’s proposed Section 303

.205),

and IERG has

proposed some revisions to the Agency’s proposed procedures. For the reasons discussed

below, IERG

submits that its proposed revisions are necessary to fashion an ORW

designation procedure that protects the rights of, and is fair to, all affected parties.

The main issue that IERG has raised regarding ORW designation is what type of

proceeding the Board should utilize when considering whether to designate a water body

as an ORW. “Board proceedings can generally be divided into two categories:

rulemaking proceedings and adjudicatory proceedings.” 35 Ill. Admin. Code

§

17

---

101.108(a). The Agency has proposed that the Board designate ORWs through a

“hybrid” proceeding, that appears to be a combination ofa regulatory and an adjudicatory

proceeding. See the Agency’s proposed Section 106.990. IERG, on the other hand, has

proposed amending the Agency’s proposal to provide that ORW designations shall take

place through an adjudicatory proceeding, specifically an adjusted standard proceeding.

See IERG’s Proposed Revised Section 303.205. LERG is not aware ofany comment by

the Environmental Groups or any other participant to this rulemaking other than the

Agency and IERG on this issue.

IERG has proposed that the Board utilize an adjudicatory proceeding when

considering whether

to designate a water body as an ORW because the burden ofproof

on a proponent in an adjudicatory proceeding before the Board is well established, while

the burden ofproofon a proponent in a rulemaking proceeding is not. In an adjusted

standard

proceeding, for example, “[t]he burden ofproof.

..

is on the petitioner,” who

“must justify an adjusted standard consistent with Section 27(a) ofthe Act.” 35 Ill.

Admin. Code

§

104.426. IERG is not aware ofany decision by the Board establishing

the burden of proofon the proponent in a rulemaking proceeding.

The issue of burden of proofis crucial in this context for several reasons. First,

and most importantly, the burden ofproofmust be clear because ofthe severe impacts

that an ORW designation would have. When IERG questioned the Agency’s witness Mr.

Toby Frevert at the First Hearing in this matter regarding what type ofproceeding the

Board should use to designate ORWs, Mr. Frevert indicated that the Agency “want[ed] to

adhere to a fairly open regulatory process.” November 17, 2000, Hearing Transcript, at

p. 88, 11. 9-10. Mr. Frevert further testified, however, that:

18

---

the ramifications of[a] decision [to designate a surface water body as an

ORW] are fundamentally more significant than the ramifications of a

typical adjusted standard or even a

statewide standard in that we are not

setting a target to protect an environmental use here. We are setting an

absolute prohibition on some activities. And that has greater ramifications

on property owners and other citizens in the community than changing the

water quality standard from No. A to No. B.

So our intent is to remain relatively flexible, recognizing those higher

ramifications, making sure there is an obligation to disseminate adequate

information to start the process and that potentially [a]ffected property

owners and other citizens have adequate notice, whieh probably isn’t

accomplished in a typical adjusted standard set ofprocedure requirements.

You are not only talking about surface property rights, but even mineral

rights[,] and [with] an outstanding resource water[,] other than a very few

things[,] you are almost precluded in any development. And that is so

much ofa higher significance than merely adjusting an environmental

effect standard that we thought there is a responsibility to even start the

process to make sure that the people that have something at stake and are

effected have a better chance of getting notice early on so they can

participate.

November 17, 2000, Hearing Transcript at p. 88, 11. 11-19.

In a proceeding that will set “absolute prohibitions” on the use of land owned by a

specific set of persons, a proponent ofan ORW designation must have a burden to prove

the facts in support of the designation and to prove that the designation is warranted. It is

crucial that the State not take away property rights without at least that level of process.

Second,

the clear burden of proofofan adjudicatory proceeding gives interested

parties clear direction on what they must show to either support or oppose the

designation. The proponent ofthe designation knows that it has the burden to establish

certain things. The opponent of the designation knows what the proponent must

establish, and is thus able to ascertain whether the proponent has met its burden.

Third, the clear burden ofproof ofan adjudicatory proceeding gives the Board a

framework to utilize when considering a petition to designate a water body as an ORW.

19

---

The Board can examine whether the proponent has met its burden ofproof on the

specified issues. Ifthe proponent has met its burden of proof, the designation can be

granted; if the proponent has not met its burden ofproof, the designation can be denied.

Fourth, use ofan adjudicatory proceeding makes it much easier for a reviewing

court

to evaluate the Board’s decision. “When an administrative agency such as the

Board exercises

its rulemaking powers, it is performing a quasi-legislative function and,

therefore, has no burden to support its conclusions with a given quantum of evidence.”

Horsehead Resource Dev. Co.. Inc. v. Illinois Pollution Control Bd., 684 N.E.2d 837, 840

(1st Dist. 1997) (citations omitted). Thus, when reviewing a rulemaking, a court “need

not consider whether the manifest weight ofthe evidence reveals that the proposed

regulations are technically

feasible and economically reasonable. A regulation will be

upheld

ifthe record simply reflects that these factors were ‘taken into account.”’ Granite

City Div. ofNat. Steel Co. v. Illinois Pollution Control Bd., 581 N.E.2d 703, 708 (5th

Dist. 1991) (citations omitted).

So, if the Board denied a petition to designate a water body as an ORW in a

rulemaking proceeding, a reviewing court would not be able to consider, for example,

whether the evidence presented by the proponent ofthe designation demonstrated that

denial

ofthe designation would threaten endangered species or the essential character of

the waterbody. Instead, the reviewing court would only be able to examine whether the

Board had “taken those

issues into account,” with no regard as to the amount or the

quality of the evidence presented to the Board on those issues.

On the other hand, if the Board denied a petition to designate an ORW in an

“adjudicatory proceeding, a reviewing court may only set aside the agency decision ifit

20

---

is clearly against the manifest weight ofthe evidence.” Shell Oil Co.. et al v. Illinois

Pollution Control Bd., 346 N.E.2d 212, 218 (5th Dist. 1976). Therefore, the reviewing

court’s responsibility “is to evaluate all the evidence on the record.

..

to determine

whether the Board’s finding

arc contrary to the manifest weight of the evidence.” Wells

Manufacturing Co. v. Illinois Pollution Control Bd., 383 N.E.2d 148, 151 (Ill. 1978). In

this situation, the reviewing court would be able to review the amount and the quality of

the evidence presented to the Board.

IERG has noted the similarities between the designation of ORWs and the

designation

of“special resource groundwaters.” See Prefiled Testimony of Bill Compton

at

5-6.

First, both arc unique bodies ofwater. A “special resource groundwater” is

“[gjroundwater that is determined by the Board.., to be.

..

[diemonstrably unique[,]

[v]ital for a particularly sensitive ecological systemE,] or... that contributes to a

dedicated nature

preserve. 35 Ill. Admin. Code

§

620.230. An “ORW” is “a water body

or

waterbody segment that is ofuniquely high biological or recreational quality.”

Agency’s proposed Section 303.205.

Second, the designation of both special resource groundwaters and ORWs places

burdens

on the owners of real property at which the waters are located. At the first

hearing in this matter, the Agency’s witness Mr. Frevert acknowledged that both

designations would both impose “significant.

..

restrictions” on property owners.

November 17, 2000, Hearing Transcript, at p. 94, 11. 2-8. In fact, Mr. Frevert testified

that it was

his understanding that the limitations associated with the designation ofan

ORW “may be even more restrictive

for outstanding resource waters than the limitations

placed on groundwaters.” November 17, 2000, Hearing Transcript, at p. 94, 11. 9-12.

21

---

IERG has proposed that the adjusted standard procedure be the adjudicatory

proceeding that the Board uses to designate ORWs. At the Third Hearing, the Board

raised some questions about the use of the adjusted standard procedure, including whom

the parties to such proceedings would be, how interested persons would prove standing

sufficiently to participate in such proceedings, and who could appeal in such proceedings.

February 6, 2001, Hearing Transcript, at pp. 116 to 118.

IERG proposed the use of the adjusted standard procedure because ofthe parallels

between ORWs and Special Resource Groundwaters, which are designated through an

adjusted standard proceeding. IERG agrees that the Board’s concerns about the use of

the adjusted standard procedure are valid, however. After further consideration, IERG is

not wedded to the use ofthe adjusted standard procedure to designate ORWs. Instead,

IERG’s goal is to have ORW designations take place through an adjudicatory proceeding,

for the reasons stated above. This could either be a modified adjusted standard process,

or some other adjudicatory type ofproceeding, as the Board may see fit.

V.

CONCLUSION

IERG would like to again thank the Board for holding the Third Hearing in this

matter on February 6, 2001. IERG believes that the comments and proposals submitted

in advance ofthat Third Hearing, and the testimony elicited at that Third Hearing, will be

very helpful to the Board as it considers the Agency’s antidegradation proposal. IERG

urges the Board

to favorably consider the revisions to the Agency’s proposal put forth by

22

---

IERG and discussed at the Third Hearing and above in taking further action in this

matter.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP,

By:________________________

Katherine D. Hodge

Dated: March 19, 2001

Katherine D. Hodge

Thomas

G. Safley

HODGE

& DWYER

3150 Roland Avenue

Post Office Box 5776

Springfield,

Illinois 62705-5776

(217)

523-4900

Karen L. Bernoteit

Illinois Environmental Regulatory Group

215 East Adams Street

Springfield, Illinois 62701

IERG:OO hR Dockets/FiIJRO1-1 3/Post-Hearing Brief

23

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EXHIBIT A (3/19/0 1)

CHAPTER I: POLLUTION CONTROL BOARD

WATER QUALITY STANDARDS

Section 302.105 Antidegradation

The purpose ofthis Section is to maintain high quality waters and to prevent unnecessary

deterioration of waters ofthe State.

a)

Existing Uses

Uses actually attained in the surface water body or surface water body segment on

or after November 28,

1975,

whether or not they are included in the water quality

standards, must be maintained and protected. Examples of degradation of

existing uses ofthe waters of the State include but are not limited to:

1)

an action that would result in the deterioration ofthe existing aquatic

community, such as a shift from a conrmunity ofpredominantly pollutant-

sensitive

species to pollutant-tolerant species or a loss of species diversity;

Of

and

2)

an action that would result in a loss of a resident or indigenous species

whose presence is necessary to sustain commercial or recreational

activities.

b)

Outstanding Resource Waters

1)

Waters that arc cla~ificd designated as an Outstanding Resource Waters

(ORWa) pt

tint-ta and listed in

35

Ill. Adm. Code 303 .206 must not be

lowered

in quality cxccpt a~ providcd below:, provided, however, that the

follow activities and discharges may be allowed if the Agency determines

that the requirements for High Ouality Waters. set forth in subsection (c

of this Section. have been met. and that all existing uses ofthe ORW water

will be fully protected

A)

An-aeti~44y Activities that resulta in short-term, temporary (i.e.,

weeks or months) lowering ofwater quality in an ORW;

of

---

B)

Existing site stormwater discharges into an ORW that comply with

applicable federal and state stefifi-watef stormwater management

regulations

and that do not result in a violation ofany water quality

standards; and

C)

Activities that result in an increase in pollutant loading into an

ORW that necessitates the issuance of a new. renewed. or modified

The proponent of any activity’ requiring a National Pollutant

Discharge Elimination System (NPDES) permit. with a new or

increased permit limit, or a Clean Water Act (CWA) Section 401

certification, is required. provided that the proposed increase in

pollutant loading is necessary for an activity that will improve

water quality in the ORW and that such water quality improvement

could not be practicably achieved without the proposed increase in

pollutant loading, must also submit a demonstration to the Agency

meeting the requirements of subsections b(2) and e(2) of this

Seetiefi.

2)

The activities referenced in subsection (b)(1) or proposed increase in

pollutant loading must also meet the following requirements

A)

All existing uses of the ORW water will be fully proteeted

B)

The proposed increase in pollutant loading is necessary for an

activity that will improve water quality in the ORW; and

The

111/1

nrn~ti~nh1v achieved without the

proposed increase in pollutant loading

3)

P~y proposed increase in pollutant loading requiring an NPDES permit or

a CWA 401 certifleation for an ORW must be assessed pursuant to

35

Ill

Adm. Code Part

351

to determine compliance with this Section

c)

High Quality Waters

1)

Except as otherwise provided in subsection (d) ofthis Section, waters of

the State whose existing quality exceeds established standards of this Part

must be

maintained in their present high quality, unless the Agency

determines, the proponent can demonstrate pursuant to subsection (c)(2) of

this Section, that allowing the lowering of water quality; is necessary to

accommodate important economic or social development.

2)

Any proposed increase in pollutant loading that necessitates a new

renewed, or modified s jeet-te--a NPDES permit, with a new or increased

permit limit, or a CWA Section 401 certificationA must be assessed by the

Agency pursuant to

35

Ill. Adm. Code Part

351

to determine eefflplianee

2

---

with this Section. whether allowing the lowering of water quality is

necessary to accommodate important economic or social development.

A)

In making its assessment, the Agency shall determine, upon a

request by an applicant pursuant to subsection (c)(2)(A)(i) ofthis

Section. and in accordance with subsections (c)(2~(A)(i) through

(vi) ofthis Section, whether the proposed increase in pollutant

loading will have a significant impact upon the overall water

quality, or the existing uses. ofthe receiving water. Ifthe Agency

determines that the proposed increase in pollutant loading will not

have a significant impact upon the overall water quality or the

existing uses ofthe receiving water. such increase in pollutant

loading shall be deemed to comply with the provisions of

subsection (c)(2)(B) ofthis Section

Any applicant for a new. renewed. or modified NPDES

permit or CWA Section 401 certification may file with the

Agency. as part ofits application, a request for a

determination that the proposed increase in pollutant

loading (or other activity or discharge) will not have a

significant impact upon the overall water quality, orthe

existing uses. of the receiving water

ii)

Such request shall set forth, as necessary. information on

the proposed increase in pollutant loading, the nature of the

dischar2e in general. including timing. location and

physical characteristics, and may also include any other

information which may assist the Agency in making its

determination

iii)

In making its significance determination, the Agency may

consider

a)

the volume. constituents. and concentrations of

parameters in the proposed increase in pollutant

loading

b)

the nature ofthe proposed increase in pollutant

loading, including location of the discharge. and

timing and physical characteristics ofthe discharge

and

c)

the nature and condition of the receiving water

including existing water quality characteristics, the

chemical and physical characteristics ofthe water

3

---

and of the water body. and any relevant biological

chemical, or physical characteristics ofthe water

which will affect the impact ofthe proposed

increase in pollutant loading upon the waterway

Or. alternatively the Agency may consider whether the

applicable numeric ornarrative water quality standard will

not be exceeded as a result of the proposed activity and

whether all existing uses will be fully protected

iv)

In making its significance determination, the Agency may

utilize the information sources set forth in subsection

(c)(2)(B)(iii) of this Section

v)

The Agency shall make significance determinations in

accordance with ~

subsection 302.105

(c) (3)

of this Section

vi)

Ifthe Agency determines that the proposed increase in

pollutant loading is significant. it shall so inform the

applicant, in which case. the applicant then may comply

with the provisions ofsubsection (c)(2)(B) of this Section

or may appeal the Agency’s determination to the Board in

accordance with

35

Ill. Adm. Code 105.Subpart B

B)

Ifthe Agency determines that the proposed increase in pollutant

loading will have a significant impact upon the overall water

quality or the existing uses of the receiving water, such proposed

increase in pollutant loading shall be assessed by the Agency in

accordance with

subsection

302.105 (c) (3)

ofthis Section.

In making its

assessment

I)

The Agency shall consider the fate and effect of any

parameters proposed for

an increased pollutant loading~,

ii)

The proponent ofan increased pollutant loading shall

demonstrate the following: The Agency shall determine

whether

a)

The applicable numeric or narrative water quality

standard

mtt~

will not be exceeded as a result of the

proposed activity;

b)

All existing uses II9iist will be fully protected;

4

---

c)

All technically and economically reasonable

measures to avoid or minimize the extent ofthe

proposed increase in pollutant loading IdInei’ea~e

have been incorporated into the proposed activity;

and

d)

The activity that results in an the increased in

pollutant loading mttat will benefit the community

at large.

iii)

In making its assessment, the Agency may utilize the

following information sources

a)

Information, data or reports available to the Agency

from its own sources

b)

Information, data or reports supplied by the

applicant

c)

Agency experience with factually similar permitting

scenarios: and/or

d)

Any other valid information available to the

Agency

In conducting Antidegradation Assessments pursuant to this Section

A)

A permit application for any proposed increase in pollutant

loading that necessitates a new, renewed. or modified NPDES

permit. with a new or increased permit limit, or a CWA

Section 401 certification, must include, to the extent necessary

for the A~encv to determine that the Dermit anulication meets

i)

Identification and characterization of the waters

affected by the proposed load increase or proposed

activity and their existing uses. Characterization must

address physical. biological and chemical conditions of

the waters

ii)

Identification and quantification of the proposed load

increases for the applicable parameters and of the

potential impacts of the proposed activity on the

affected waters

5

---

The purpose and anticipated benefits of the proposed

activity. Such benefits mayinclude, but are not limited

a)

and treatment system for a previously unsewered

b)

Expansion to provide service for anticipated

residential or industrial growth consistent with a

community’s long range urban planning

Addition ofa new product line or production

increase or modification at an industrial facility

d)

employment levels at a facility

iv)

Assessments ofalternatives to proposed increases in

pollutant loading or activities subject to Agency

certification pursuant to Section 401 ofthe CWA that

result in less of a load increase, no load increase or

minimal environmental degradation. Such alternatives

may include, but are not limited to

a)

discharge alternatives:

Discharge

ofwaste to alternate

1nr2tinn~

including publicly-owned treatment works and

c)

vi)

B)

The Agency must complete an antidegradation demonstration

review in accordance with the provisions of this Section

i)

The antidei~radation assessment pursuant to this

Section is a Dart ofthe NPDES permitting process or

6

---

the CWA Section 401 certification process. However.

applicants slimuld xn~~ initiate communication with the

Agency, preferably durine the

plannini~ stage for any

load increase. Communication will help assure the

adeiuacv of information necessary to constitute an

antide2radation demonstration and avoid or minimize

delays and reuiuests for supplemental information

during the permittini~ stage. The A2ency review

process

shall be initiated by:

a)

an informal or preliminary request ofa

proponent of a project prior to filing of a permit

application: or

receipt of an

——

~nnhip~itinn

SJSpRAtULK~R~ for an NPDES permit

issuance, renewal or modification, or a CWA

ii)

A proponent seeking an immediate review of the results

of the Agency’s review pursuant to subsection (b)(1

must do so within the NPDES permit process or the

iii)

shall consult with the proponent and respond

a)

in writing to written requests;

verbally

to verbal requests: or

c)

iv)

The written response will include a statement by the

Agency indicating whether the demonstration, based

upon the information provided or information acquired

by the Agency during the review process. meets the

v)

After its review, the Agency shall produce a written

analysis addressing the requirements ofthis Section and

a)

Ifthe demonstration meets the requirements of

this Section. then the Agency shall proceed with

public notice of the NPDES permit or CWA

Section 401 certification and include the written

7

---

b)

If the demonstration does not meet the

requirements ofthis Section. then the Agency

shall provide a written analysis to the applicant

and shall be available to discuss the deficiencies

that led to the disapproval. The Agency may

suggest methods to remedy the conflicts with the

c)

Ifthe demonstration does not meet the

requirements of this Section. but some lowering

ofwater quality is allowable, then the Agency

will contact the applicant with the results ofthe

review

1.

Ifthe reduced loading increase is

acceptable to the applicant, upon the

receipt ofan amended demonstration. the

Agency will proceed to public notice: or

2.

Ifthe reduced loading increase is not

acceptable to the applicant, the Agency

will transmit its written review to the

applicant in the context ofa NPDES

permit denial or a CWA Section 401

certification denial

C)

When the Agency initially determines to authorize a load

increase, public notice and public participation will be

achieved through the public notice procedures found in 35 Ill

Adm. Code 309.109 or CWA Section 401 certifications. The

Agency shall incorporate the following information into a fact

i)

water quality parameters which will experience the

increased pollutant loading

ii)

Identification ofthe affected water segment. any

downstream water segment also expected to experience

a lowering of water quality, characterization of the

designated and current uses ofthe affected segments

8

---

and identification ofwhich uses are most sensitive to the

proposed load increase

iii)

A summary of any review comments and

recommendations provided by Illinois Department of

Natural Resources, local or regional planning

commissions, zoning boards and any other entities the

iv)

An overview of alternatives considered by the applicant

and identification of any provisions or alternatives

imposed to lessen the load increase associated with the

proposed activity: and

The name and telephone number of a contact person at

the Agency who can provide additional information

d)

Activities Not Subject to a Further Antidegradation D;2~n~i~ Assessment

The following activities shall be deemed to comply with the provisions ofthis

Section and shall not be subject to ~a further antidegradation demei~s~atien

assessment pursuant to subsection (c) ofthis Section.

1)

Short-term, temporary (i.e., weeks or months) lowering ofwater quality;

2)

Bypasses that are not prohibited at 40 CFR 122.4 1(m);

3)

Response actions pursuant to the Comprehensive Environmental

Response, Compensation

and Liability Act (CERCLA), as amended, or

corrective actions pursuant

to the Resource Conservation and Recovery

Act (RCRA). as amended. or similar federal or State authority, taken to

alleviate a release into the environment of hazardous substances,

pollutants

or contaminants which may pose a danger to public health or

welfare;

4)

Thermal discharges that ha~ have been approved through a CWA Section

316(a) demonstration;

5)

New or increased discharges offt non-contact cooling water~-wi4hettt

additives. returned to the same body ofwater from which it was taken~ as

defined by 35 Ill. Adm. Code 352.104, provided that the discharge

complies with applicable Illinois thermal standards, and that the Agency

has approved the use of any additives present in specific discharge

9

---

~)

Discharges permitted under a current general NPDES permit as provided

by

415

ILCS

5/39(b),

arc not ~ubjcctto facility ~pccificantidogradation

fe~ew7-Lef

7)

8)

9)

Changes to or inclusion ofa new permit limitation that does not result in

an actual increase of a pollutant loading, such as those stemming from

improved monitoring data, new analytical testing methods, new or revised

technology or water quality based effluent limits (WOBELs):

Site stormwater discharges covered by a Stormwater Pollution Prevention

Plan. as required in an individual NPDES permit. provided that the

discharge will not

cause or contribute to a violation of Illinois water

quality standards:

New or increased discharges of a pollutant where the permit applicant has

made

a contemporaneous and enforceable decrease in the actual loading of

that pollutant at the source such that there is no net increase in the loading

ofthat pollutant into the same surface water body or surface water body

segment:

Discharges authorized by a site-specific regulation. adjusted standard. or

variance issued by the Board:

Discharges authorized by a Consent Order or Consent Decree entered by a

court of competent jurisdiction:

10)

11)

12)

An increase in pollutant loading that results in a lowering ofwater quality

that is less than a de minimis lowering ofwater quality. As used in this

provision, a “de minimis lowering ofwater quality” occurs if all ofthe

following are satisfied for the constituent under consideration and such a

determination is consistent with any other applicable requirements and

limitations in this Part

A)

The proposed increase in mass discharged is less than ten percent

(10%) of the unused loading capacity. The proposed increase in

mass discharged shall be determined as follows

MD

-

ME

=

Prouosed increase in mass dischawed

Where M~

=

Monthly average mass effluent limitation for the parameter in the

proposed discharge

10

---

ME

=

Monthly average mass effluent limitation for the parameter in the existing

permit. Ifthe existing permit does not contain a monthly average mass

effluent limitation for the parameter. but does contain a weekly average or

daily maximum mass limit, the existing weekly average or daily

maximum permit limit shall be converted into a monthly average value to

be used in this equation. Ifthe existing permit does not contain a mass

limit for the parameter. but does contain a concentration limit, this

concentration limit shall be converted into a mass value, using the

discharge flow rate, to be used in this equation. Ifthe existing permit does

not contain an effluent limit for the parameter, the actual monthly average

mass discharged shall be used in this equation

B)

For the purposes ofthis subsection. “Total loading capacity

means the product ofthe applicable water quality criterion times

the sum of the existing effluent flow and the stream design flow for

the water body in the area where the water quality is proposed to

be lowered, expressed as a mass loading rate: and “Unused loading

capacity” means that amount of the total loading capacity not

utilized by point source and nonpoint source discharges. The

unused loading capacity is established at the time the request to

lower water quality is considered

e)

Lake Michigan Basin

Waters in the Lake Michigan basin as identified in

35

Ill. Adm. Code 303.443 are

also subject to the requirements applicable to bioaccumulative chemicals of

concern found at Section 302.521 of this Part.

IERG:OO1/R Dockets/FiI/RO 1-13/Part 302

11

---

F-—-

!LL[NOIS

ENVIRONMENTAL

PROTECTION AGENCY

O

702?

No~rH GRANO A~~VU~ EAST, P0

BOX I 927b, SP~i~~PiE.O, LLINOI~, b2794-92/6

THOMAS V. SKLNNER. OFRI~CTOI~

MEMORANDUM

DATE:

June 14, 2000

TO:

Anti-Degradation Workgroup

FROM:

Toby Frevert

SUBJECT:

Draft Rules and bnplemernation Procedures

We

have

completed our redraft of the Anti-degradation policies and procedures based on the

written cormuents received and the discussions ofour February 16 workgroup meeting. Enclosed

are the following draft documents:

1. Revision to tPCB non-degradation Standard —35 II. Adin. Code 302.105

2. Agency procedures for application of the new anti-degradation standard within its

NPDES and CWA Seetion 401 Certification programs

3. Proposed addition of an “Outstanding Resource Waters” category to the IPCB’s

designated uses regulations at

35

EL.Adm. Code Subtitle C, Section 303.205

4. Proposed procedural rules governing the proposal and adoption of an “Outstanding

Resource Water” alassification.

-

5.

A

summary of the various exceptions suggested by the workgroup and the

perspective ofthe Agency relative to their inclusion orexclusion from the proposal.

The Agency will proceed in the next few weeks to assemble these materials along with other

appropriate supporting material into a petition forrulemaking that will be filed with the LPCB.

I appreciate time and effort each ofyou contributed to the workgroup. Undoubtedly there are still

some areas where differing views persist, but I believe we have collectively made great progress

in resolving many issues and focusing ochei-s such that the hearings before the [PCBwill be much

more efficient.

Once again I wish to thank you foryour participation and encourage your continued involvement

us this matter moves from ourworkgroup forum into the adoption stage

~dedat~ork~jt:

Deanna Glosser

IDNR

Dick Reilly

Hey & Assoc.

Paul Pederson

Nalco Ch~mic:l

Chris Bucko

11. Alt. Gem.

Mark Bid

CICI

GEO~G~ ~-{. RYAN. GOVERNOR

---

Attachment 5

Summary of

exceptions presented by various workgroup participants

1. Various circumstances where the action does not constitute an increased load,

rather it merely institutes a limit on a parameter that was already present in the

permitted source. Source: American Bottoms(#1 & 10), IERG(#5), IAWA(#1 0-b-

2,3,4,5&7)

Rationale- Since this is not a load increase it is not subject to the anti-deg rule,

therefore no exception is either necessary or appropriate.

2. Exception for stormwater discharges. Sources: American Bottoms(#4),

IERG(#7), IAWA(#1 O-b-4)

Rationale- An exception has been proposed for sources permitted and

operating under a general permit, most stormwater discharges are covered by a

general permit. Therefore the intent ofthis exception has been honored.

Stormwater discharges significant enough to warrant an individual permit would

receive some extent of anti-deg review.

3. Exceptions for POTW Routine Additional loadings. Source: American

Bottoms(#5), IAWA(#1 O-b-2)

Rationale- The anti-deg provision is triggered by a proposed increase in NPDES

permitted loading. Routine Incremental increases in service area or tributary

loading to a P01W were determined to be compliant with anti-deg at the time the

permit loadings were set. Unless the proposed increase is in conflict with the

approved

facility plan, anti..deg demonstration or other basis for setting the

existing permit limits, no supplemental review would be required.

4. Domestic wastewater treatment exception. Source: American Bottoms(#6)

Rationale- This appears to be in direct conflict with the intent of the standard.

Anti-degradation typically does not preclude any particular toad increase, rather

it subjects that proposed increase to a public review and balance between

environmental and socialleconomic goals. Even when all parties agree that

additional domestic wastewater service is appropriate, the alternatives analysis

and public review provisions ofthe anti-deg standard should be addressed to

assure the most balanced project.

5. Exception for Net Improvement (including water quality improvements and

cross media improvements). Source: American Bottoms(#8) & IERG(#1

1),

IAWA(#1 0-b-5,6 ,7)

Rationale- The anti-degradation standard does not prohibit load increases, it

merely requires a balance of environmental considerations against

social/economic considerations within a public forum. In cases where net

improvement” in water quality results, anti-degradation could easily be addressed

by documenting the benefit in the public notice fact sheet. Compliance with the

---

standard should be no less burdensome than documenting eligibility for the

exception and no more subject to challenge than an assertion of incorrectly

applying an exception.

6. Exception for Variances and Adjusted Standards. Source: American

Bottorns(#7) & IERG(#1O)

Rationale- If the Board specifically authorizes a load increase through its own

action the Agency will not nullify any provision of that order through application of

anti-degradation. The Board order itself will constitute either compliance with or

exception from the action at hand.

7. Exception for treating intake pipes for zebra mussel. Source: American

Bottoms(#9), lAWA(#1 O-b-8)

Rationale- This is a specific application where the social/economic need is

relatively obvious and easy to document. Nevertheless. anti-degradation review

may be valuable since there are various methods and substances that can be

utilized for zebra mussel control (some of which rely heavily on toxicants). The

alternatives analysis provisions of anti-degradation would still be valid and

appropriate; thus the Agency will not propose a blanket exception.

8. Exception for De Minimis Factors. Source: multiple participants

Rationale- The Agency supports the concept ofabbreviating reviews consistent

with the relative insignificance of small increases in loading but are not proposing

a specific de minimis exception for several reasons. Firstly, arbitrary percentage

increases don’t relate well to either science or economics.’ An “X” percent

increase in loading may impart some relevance to an existing source, but does

not address the relative effect on the receiving water. This would also be

problematic for a new source where the smallest of loading increase would be

Infinite. If the de minimis level is described relative to the stream such as a

specified percentage of the remaining assimilative capacity, this presumes that

there

is one quantifiable and readily determinable mass that constitutes

remaining assimilative capacity. In reality, assimilative capacity varies

proportional to many factors (flow, temperature, hardness, pH, turbidity, timing

and duration of exposure, etc.) and can be different every day. The other and

mare significant concern is that reserve assimilative capacity is usually unknown

and in many cases would be more difficult to quantify sufficiently than to

complete an abbreviated anti-degradation review. For instance if a de minimis

exception was set at 5% It would probably be easier to make the judgement that

a relatively small loading increase was compliant with the intent of the standard

than

to quantify withany certainty that it was 4,9% rather than 5.1%. This would

be true even if assimilative capacity was simplistically defined under a standard

set ofworst case conditions.

Conceptually1

the Agency supports de minimis provisions and intends to utilize

the principle in carrying out its implementation duties. Furthermore the Agency

---

welcomes testimony on the issue and would support addition of a de minimis

exception that was neither arbitrary nor more burdensome than performing the

review.

9. Exceptions for offset provisions. Sources: American Bottoms(#3), lllinois Coal

Association, IERG(#9)

Rationale- If the offset is internal to an individual permit there~ may’ be a need to

modify the permit to reflect the changed operating conditions, but the change

would not constitute a load increase therefore anti-degradation would not apply.

CWA Section 401 water quality certifications have been issued under conditions

requiring

incorporation of mitigation features into a project design, but within the

domain of the project proponent. Offsetting from an activity or source external to

an NPDES permit or a Section 404 permitted activity is more complex. The

Agency believes this concept has potential application to and does not rule out

offsets or other mitigation steps, but believes this should be inherent to the

alternatives analysis within an anti-degradation review rather than an exemption

from anti-degradation. Regardless of whether authority exists to condition a

permitted activity upon something external to the permitted activity, the Agency

does not support offsetting as an exception.

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Page 14

Citation

Found Document

Rank 1 of 1

Database

WI ADO S NR 207.04

WI-ADO

Wis. Adm. Code s NR 207.04

Wis. Admin. Code s NR 207.04

TEXT

WISCONSIN ADMINISTRATIVE CODE

DEPARTMENT OF NATURAL RESOURCES

CHAPTER NR 207. WATER QUALITY ANTIDEGRADATION

Current through Reg. No. 541 (Jan 2001)

NR 207.04 Fish and aquatic life waters.

(1) Application information. Persons proposing a new or increased discharge to

fish and aquatic life waters shall provide documentation for the following:

(a) An assessment of existing treatment capability which demonstrates:

1. Any of the following:

a. The permittee’s discharge equals or exceeds 85% of any mass permit

limitation.

b. The permittee’s monthly average discharge equals or exceeds 85% of a

monthly average effluent limitation established in a permit for 3 consecutive

months;

c. The permittee’s weekly average discharge equals or exceeds 85% of a weekly

average

effluent limitation established in a permit for 4 consecutive weeks.

d. The permittee’s daily discharge equals or exceeds 85% of a daily maximum

effluent limitation established in a permit 5 or more times during a calendar

year;

e. There are exceedances of any daily maximum, weekly average or monthly

average effluent limitation for a parameter in a permit; or

f. A municipal permittee’s compliance maintenance annual report point total,

as required in ch. NR 208, is 70 or greater;

2.

3.

The treatment facilities were operated and maintained as efficiently as

possible; and

4. The conditions documented in subd. 1. were not due to temporary upsets.

(b) Effluent quality data and background water quality data for indicator

parameters so a determination will be made on whether or not a significant

lowering of water quality will occur under s. NR 207.05.

(c) If the proposed new or increased discharge is found to result in any

lowering of water quality or if the person proposing the new or increased

discharge has waived the procedure in s. NR 207.05 (2) (a) to Cd), the permit

applicant shall demonstrate the following:

1. The proposed new or increased discharge will accommodate important

economic or social development in any of the following ways:

a. The discharger will be increasing its employment.

b. The discharger will be increasing its production level.

c. The discharger will be avoiding a reduction in its employment level.

d. The discharger will be inc

~ ~~~~ciency.

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WI ADC S NR 207.04

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e. There will be industrial, commercial or residential growth in the

community.

f. The discharger will be providing economic or social benefit to the

community.

g. The discharger will be correcting an environmental or public health

problem.

(d) If the new or increased discharge is found to result in a significant

lowering of water quality or if the person proposing the new or increased

discharge has waived the procedure in s. NR 207.05 (2) (a) to (d), the permit

applicant shall demonstrate the following:

1. The proposed significant lowering of water quality cannot be prevented in a

cost effective manner by the following types of pollution control alternatives:

a. Use of conservation measures.

b. Use of recycling measures.

c. Use of other applicable wastewater treatment process or operational

changes.

d. Use of source reduction measures.

e. Use of other pollution minimization alternatives.

2. For proposals involving the expansion of a wastewater treatment plant,

whether or not there are alternative wastewater treatment technologies which:

a. Have documented performance levels for similar wastewater composition,

b. Have capital costs less than 110% of the capital costs (or present worth

less than 115% of the related total present worth value) for alternatives

achieving the water quality based effluent limitations or the effluent

limitations determined pursuant to chs. NR 200 to 297, as appropriate, and

c. Would prevent a significant lowering of water quality.

3. Whether or not there are other discharge locations or alternatives which

would meet the conditions of subd. 2. b. and c.

4. Any other information required by the department or believed by the

applicant to be necessary to complete review of the application.

Note:

It is the intent of the department that, where possible, an applicant may

use

applicable information contained in a facility plan approved by the

department to meet the requirements of s. NR 207.04 (1) (a) l.a. to f..

(2) Department determinations. (a) If the department determines that the

existing wastewater treatment facilities have treatment capability to treat any

proposed new or increased discharge and maintain treatment levels sufficient to

meet existing effluent limitations as documented under sub. (1) (a), effluent

limitations will remain unchanged.

(b) If the department determines that the existing treatment facilities do not

have treatment capability to treat any proposed new or increased discharge and

maintain treatment levels sufficient to meet existing effluent limitations,

effluent limitations will be developed using the following procedures:

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WI ADC S NR 207.04

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1. If the proposed new or increased discharge will not significantly lower

water quality as determined under s. NR 207.05 (4) and will accommodate important

economic and social development as documented under sub. (1) (c), water quality

based effluent limitations will be determined based on applicable procedures and

criteria in chs. NR 102, 103, 105 and 106 or on categorical effluent limitation

procedures pursuant to chs. NR 200 to 297 as appropriate.

2. If the proposed new or increased discharge will not significantly lower

water quality as determined under s. NR 207.05 (4) and will not accommodate

important economic and social development as documented under sub. (1) (c), water

quality based effluent limitations for substances in the new or increased

discharge will be set equal to the existing levels of these substances upstream

of, or adjacent to, the discharge site.

3. If the proposed new or increased discharge will significantly lower water

quality as determined under s. NR 207.05 (4), or the applicant has chosen to

waive the procedure in s. NR 207.05 (2) (a) to (d), and the proposed discharge

will not accommodate important economic and social development as documented

under sub. (1) (c), water quality based effluent limitations for substances in

the new or increased discharge will be set equal to the existing levels of these

substances upstream of, or adjacent to, the discharge site.

4. If the proposed new or increased discharge will significantly lower water

quality as determined under s. NR 207.05 (4), or the applicant has chosen to

waive the procedure in s. NR 207.05 (2) (a) to (d), and the proposed discharge

will accommodate important economic and social development as documented under

sub. (1) (c)

,

effluent limitations for the proposed new or increased discharge

will be determined using the procedure in par (c).

Note: When assessing existing treatment capabilities, it is the intent of the

department to consider projected increases in a perruittee’s discharge due to a

planned water conservation project.

(c) The department shall use the following procedures to determine water

quality based effluent limitations or effluent limitations determined pursuant to

chs.

NR 200 to 297 as appropriate, for each substance in the proposed new or

increased discharge for which the existing levels upstream of, or adjacent to,

the discharge site are of better quality than applicable water quality criteria

or secondary values derived according to ch. NR 102, 103 or 105:

1. If there are no applicable pollution control alternatives or alternative

discharge locations which meet the conditions of sub. (1) (d) 2. or 3., effluent

limitations will be determined for the new or increased portion of the discharge

based on applicable procedures and criteria or secondary values derived according

to chs. NR 102, 103, 105 and 106 or based on effluent limitations pursuant to

chs. NR 200 to 297, as appropriate.

2. If there are applicable pollution control alternatives or alternative

discharge locations which meet the conditions of sub. (1) (d) 2. or 3., water

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WI ADC S NR 207.04

TEXT

quality based effluent limitations will be determined for the new or increased

portion of the discharge based on the applicable pollution control alternative or

alternative discharge site which prevents the significant lowering of water

quality.

3. For an increased discharge not involving expansion of a wastewater

treatment plant:

a. If there are no demonstrated, cost effective pollution control

alternatives which would prevent significant lowering of water quality as

demonstrated under sub. (1) (d) 1., effluent limitations shall be determined

pursuant to chs. NR 102 and 106 or chs. NR 200 to 297, as appropriate.

b. If there are demonstrated, cost effective pollution control alternatives

which would prevent the significant lowering of water quality as demonstrated

under sub. (1) (d) 1., water quality based effluent limitations will be

determined for the new or increased portion of the discharge based on the cost

effective pollution control alternative which prevents the significant lowering

of water quality.

(d) The department shall determine water quality based effluent limitations

using the water quality criteria or secondary values derived according to ch. NR

102, 103, 104 or 105 for substances in the proposed new or increased discharge

whose levels in the receiving water are of lesser quality than the water quality

criteria or secondary values for the receiving water upstream of, or adjacent to,

the discharge site.

(e) In addition to the provisions of pars. (a) to (c), if the department

determines that a proposed new or increased discharge will result in lowering of

water quality in downstream outstanding resource waters or a proposed new

discharge would result in lowering of water quality in exceptional resource

waters,

other than for the reasons specified in s. NR 207.03 (2) (a), water

quality based effluent limitations for substances in the new or increased portion

of the discharge will be set to prevent the lowering of water quality in the

downstream outstanding or exceptional resource water. Whenever s. NR 207.03 (2)

(a)

applies, effluent limitations shall be established using the procedures in

this section.

CREDIT

History: Cr. Register, February, 1989, No. 398, eff. 3-1-89; renum. (1) (a) 1. a.

to d. to be (1) (a) 1. b. and d. to f., cr. (1) (a) 1. a., c. and (d) 1. e., am.

(2) (c) (intro.), 1. and (d), Register, August, 1997, No. 500, eff. 9-1-97.

<General Materials (GM)

-

References, Annotations, or Tables>

WI ADC s NR 207.04

END OF DOCUMENT

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Page 18

Citation

Search Result

Rank 23 of 37

Database

MN

ADC 7050.0185

MN-ADC

Minnesota Rules, part 7050.0185

Minn. R. 7050.0185

TEXT

MINNESOTA RULES

CHAPTER 7050

MINNESOTA POLLUTION CONTROL AGENCY

WATERS OF THE STATE

STANDARDS FOR PROTECTION OF QUALITY AND PURITY

Current with amendments adopted through 12-6-99

7050.0185 NONDEGRADATION FOR ALL WATERS.

Subpart 1. Policy. The potential capacity of the water to assimilate additional

wastes and the beneficial uses inherent in water resources are valuable public

resources. It is the policy of the state of Minnesota to protect all waters from

significant

degradation

from point and nonpoint sources and wetland alterations,

and to maintain existing water uses, aquatic and wetland habitats, and the level

of water quality necessary to protect these uses.

Subp. 2. Definitions. For the purpose of this part, the following terms have the

meanings given them:

A. ““New discharge’

‘

means a discharge that was not in existence before January

1, 1988.

B. ““Expanded discharge’

‘

means a discharge that changes in volume, quality,

location, or any other manner after January 1, 1988, such that an increased

loading of one or more pollutants results. In determining whether an increased

loading of one or more pollutants would result from the proposed change in

discharge, the agency shall compare the loading that would result from the

proposed discharge with the loading allowed by the agency on January 1, 1988.

C.

““Baseline quality’’ means the quality consistently attained by January 1,

1988.

D. ““Existing’

‘

means in existence before January 1, 1988.

E. ““Economic or social development’

‘

means the jobs, taxes, recreational

opportunities, and other impacts on the public at large that will result from a

new or expanded discharge.

F. ““Toxic pollutant’

‘

means a pollutant listed as toxic under section

307(a) (1) of the Clean Water Act, United States Code, title 33, section

1317(a) (1), or as defined by Minnesota Statutes, section 115.01, subdivision 20.

G.

““Significant discharge’

‘

means:

(1) a new discharge of sewage, industrial, or other wastes greater than

200,000 gallons per day to any water other than a class 7, limited resource value

water; or

(2) an expanded discharge of sewage, industrial, or other wastes that expands

by more than 200,000 gallons per day and that discharges to any water other than

a class 7, limited resource value water; or

(3) a new or expanded discharge containing any toxic pollutant at a mass

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MN ADC 7050.0185

TEXT

loading rate likely to increase the concentration of the toxicant in the

receiving water by greater than one percent over the baseline quality. This

determination shall be made using:

(a) data collected from the receiving water or from a water representative of

the receiving water;

(b) the entire once in ten-year, seven-day low flow of the receiving water as

defined in part 7050.0210, subpart 7; and

(c) a mass balance equation that treats all toxic pollutants as conservative

substances.

Subp. 3. Minimum treatment. Any person authorized to maintain a new or expanded

discharge of sewage, industrial waste, or other waste, whether or not the

discharge is significant, shall comply with applicable effluent limitations and

water

quality standards of this chapter and shall maintain all existing,

beneficial uses in the receiving waters.

Subp. 4. Additional requirements for significant discharges. If a person

proposes a new or expanded significant discharge from either a point or nonpoint

source, the agency shall determine whether additional control measures beyond

those required by subpart 3 can reasonably be taken to minimize the impact of the

discharge on the receiving water. In making the decision, the agency shall

consider the importance of economic and social development impacts of the

project, the impact of the discharge on the quality of the receiving water, the

characteristics of the receiving water, the cumulative impacts of all new or

expanded discharges on the receiving water, the costs of additional treatment

beyond what is required of nonsignificant dischargers, and other matters as shall

be brought to the agency’s attention.

Subp. 5. Determination of significance. A person proposing a new or expanded

discharge of sewage, industrial waste, or other wastes shall submit to the

commissioner the information required to determine whether the discharge is

significant under subpart 2. If the discharge is sewage or industrial waste, the

flow rate used to determine significance under this part is the design average

wet weather flow for the wettest 30-day period. For discharges of other wastes,

the flow rate to be used is the design maximum daily flow rate. In determining

the significance of a discharge to a lake or other nonf lowing receiving water, a

mixing zone may be established under the guidelines of part 7050.0210, subpart 5.

Subp. 6. Baseline quality. If an existing discharge to a water of the state is

eliminated or significantly reduced, baseline quality for purposes of this part

shall be adjusted to account for the water quality impact associated with that

particular discharge.

If no data are available to determine baseline quality or the data collected

after January 1, 1988, are of better quality, then the commissioner shall

authorize the use of data collected after January 1, 1988. If no data are

available, the person proposing the discharge may collect new data in accordance

with agency protocols.

Subp. 7. Incremental expansions. If a new or expanded discharge is proposed in

increments, the increments must be added together to determine whether the

discharge is a significant discharge. Once the criteria for a significant

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MN ADC 7050.0185

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discharge are satisfied by adding together the increments, the requirements of

this part shall apply to the discharge.

Subp.

8. Determination of reasonable control measures for significant

discharges.

The person proposing a new or expanded significant discharge of

sewage, industrial waste, or other wastes shall submit to the commissioner

information pertinent to those factors specified in subpart 4 for determining

whether and what additional control measures are reasonable.

The commissioner shall provide notice and an opportunity for a public hearing in

accordance with the permit requirements in chapter 7001 before establishing

reasonable control requirements for a new or expanded significant discharge.

Subp. 9. Physical alterations of wetlands. The permit or certification applicant

shall comply with part 7050.0186 if there is a proposed physical alteration that

has the potential for a significant adverse impact to a designated use of a

wetland and that is associated with a project that requires a National Pollutant

Discharge Elimination System (NPDES) permit, a 401 certification under parts

7001.1400 to 7001.1470, or a state disposal system permit.

CREDIT

Statutory Authority: MS 5 115.03; 115.44

History: 12 SR 1810; 15 SR 1057; 18 SR 614; 18 SR 2195; 22 SR 1466

MN ADC 7050.0185

END OF DOCUMENT

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Citation

Search Result

Rank 22 of 33

Database

314 MA ADC 4.04

MA-ADC

314 CMR 4.04

TEXT

CODE OF MASSACHUSETTS REGULATIONS

TITLE

314: DIVISION OF WATER POLLUTION CONTROL

CHAPTER

4.00: MASSACHUSETTS SURFACE WATER QUALITY STANDARDS

Current through January 5, 2001, Register #912

4.04: Antidegradation Provisions

(1) Protection of Existing Uses. In all cases existing uses and the level of

water quality necessary to protect the existing uses shall be maintained and

protected.

(2) Protection of High Quality and Other Significant Resource Waters. Certain

waters shall be designated for protection under this provision in 314 CMR 4.06(2)

and 4.06(3). These include waters whose quality exceeds minimum levels necessary

to support the national goal uses, low flow waters and other waters whose

character cannot be adequately described or protected by traditional criteria.

These waters shall be protected and maintained for their existing level of

quality unless limited degradation by a new or increased discharge is authorized

by the Department. Limited degradation may be allowed by the Department where it

determines that a new or increased discharge is insignificant because it does not

have the potential to impair any existing or designated water use and cause any

significant lowering of water quality; also limited degradation may be allowed as

provided in 314 CMR 4.04(4).

(3) Protection of Outstanding Resource Waters. Certain waters shall be designated

for protection under this provision in 314 CMR 4.06(3) including Public Water

Supplies (314 CMR 4.06(1) (d)l.)

.

These waters constitute an outstanding resource

as determined by their outstanding socio-economic, recreational, ecological and!

or aesthetic values. The quality of these waters shall be protected and

maintained.

(a) Any person having an existing discharge to these waters shall cease said

discharge and connect to a publicly owned treatment works (POTW) unless it is

shown by said person that such a connection is not reasonably available or

feasible. Existing discharges not connected to a POTW shall be provided with the

highest and best practical method of waste treatment determined by the Department

as necessary to protect and maintain the outstanding resource.

(b) A new or increased discharge to an Outstanding Resource Water is

prohibited unless:

1. the discharge is determined by the Department to be for the express purpose

and intent of maintaining or enhancing the resource for its designated use and a

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variance from this regulation is granted as provided in 314 CMR 4.04(4). The

Department’s determination to allow a new or increased discharge shall be made in

agreement with the federal, state, local or private entity recognized by the

Department as having direct control of the water resource or governing water use;

or

2. the discharge is dredged or fill material for qualifying activities in

limited circumstances, after an alternatives analysis which considers the

Outstanding Resource Water designation and further minimization of any adverse

impacts. Specifically,

a discharge of dredged or fill material is allowed only to

the limited extent specified in 314 CMR 9.00 and 314 CMR 4.06(1) (d)

.

The

Department retains the authority to deny discharges which meet the criteria of

314 CMR 9.00 but will result in substantial adverse impacts to the physical,

chemical, or biological integrity of surface waters of the Commonwealth.

(4) Authorizations.

(a) An authorization to discharge to waters designated for protection under

314 CMR 4.04(2) may be allowed by the Department where the applicant demonstrates

that:

1. The discharge is necessary to accommodate important economic or social

development in the area in which the waters are located;

2. No less environmentally damaging alternative site for the activity, source

for the

disposal, or method of elimination of the discharge is reasonably

available or feasible;

3. To the maximum extent feasible, the discharge and activity are designed and

conducted to minimize adverse impacts on water quality, including implementation

of source reduction practices; and

4. The discharge will not impair existing water uses nor result in a level of

water quality less than that specified for the Class.

(b) An authorization to discharge to the narrow extent allowed in 314 CMR

4.04(3) may be granted by the Department where the applicant demonstrates

compliance with 314 CMR 4.04(4) (a)2. through 4.

(c) Where an authorization is at issue, the Department shall circulate a public

notice in accordance with 314 CMR 2.06. Said notice shall state an authorization

is under consideration by the Department, and indicate the Department’s tentative

determination.

The applicant shall have the burden of justifying the

authorization. Any authorization granted pursuant to 314 CMR 4.04 shall not

extend beyond the expiration date of the permit.

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(d) A discharge exempted from the permit requirement by 314

CMR 3.05(4)

(discharge necessary to abate an imminent hazard) may be exempted from 314 CMR

4.04(4) by decision of the Department.

(e) A new or increased discharge specifically required as part of an

enforcement order issued by the Massachusetts Department of Environmental

Protection in order to improve existing water quality ‘or prevent existing water

quality from deteriorating may be exempted from 314 CMR 4.04(4) by decision of

the Department.

(5) Control of Eutrophication. From and after the date 314 CMR 4.00 become

effective there shall be no new or increased point source discharge of nutrients,

primarily phosphorus and nitrogen, directly to lakes and ponds. There shall be no

new or increased point source discharge to tributaries of lakes or ponds that

would encourage cultural eutrophication or the growth of weeds or algae in these

lakes or ponds. Any existing point source discharge containing nutrients in

concentrations which encourage eutrophication or growth of weeds or algae shall

be provided with the highest and best practical treatment to remove such

nutrients. Activities which result in the nonpoint source discharge of nutrients

to lakes and ponds shall be provided with all reasonable best management

practices for nonpoint source control.

(6) Discharge Criteria. In addition to the other provisions of 314 CMR 4.00, any

authorized discharge shall be provided with a level of treatment equal to or

exceeding the requirements of the Massachusetts Surface Water Discharge Permit

Program (314 CMR 3.00). Before authorizing a discharge all appropriate public

participation and intergovernmental coordination shall be conducted in accordance

with Permit Procedures (314 CMR 2.00)

<General Materials (GM)

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References, Annotations, or Tables>

Mass. Regs. Code tit. 314, § 4.04

314 MA ADC 4.04

END OF DOCUMENT

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West 2001 No Claim to Orig. U.S. Govt. Works

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Indiana

327

IAC 5-2-11.3 Great Lakes system dischargers antidegradation implementation

procedures

Authority:

IC 13-14-8; IC 13-14-9; IC 13-15-1-2; IC 13-15-2-1; IC 13-18-3

Affected: IC 13-11-2-24; IC 13-15-5-1; IC 13-18-4; IC 13-18-7; IC 13-23-13; IC

13-24-1;

IC

13-25-5

Sec. 11.3. (a) For all waters within the Great Lakes system, the commissioner

shall ensure that the level of water quality necessary to protect existing uses is

maintained. In order to achieve this requirement, and consistent with 40 CFR 131.10,

water quality standards use designations must include all existing uses. Controls shall be

established as necessary on point and nonpoint sources of pollutants to ensure that the

criteria applicable to the designated use are achieved in the water and that any designated

use of a downstream water is protected. Where water quality does not support the

designated uses ofa waterbody or ambient pollutant concentrations are greater than water

quality criteria applicable to that waterbody, the commissioner shall not allow a lowering

ofwater quality for the pollutant or pollutants that prevents the attainment of such uses or

the water quality criterion.

(b) For high quality waters that are not designated as an outstanding state resource

water, the commissioner shall ensure that no action resulting in a significant lowering of

water quality occurs unless an antidegradation demonstration has been completed

pursuant to subdivision (3) and the information thus provided is determined by the

commissioner

pursuant to subdivision (4) to adequately justify the proposed lowering of

water quality. In allowing such degradation, the commissioner shall assure water quality

adequate to protect existing uses fully. Further, the commissioner shall assure that there

shall be achieved the highest statutory and regulatory requirements for all new and

existing point sources and all cost-effective and reasonable best management practices

for nonpoint source control. The following provisions apply to high quality waters that

are

not designated as an outstanding state resource water:

(1) A significant lowering of water quality occurs when any of the following

occur:

(A)

A new or increased loading of any bioaccumulative chemical of

concern (BCC) is proposed from any existing or new facility, either point

source or nonpoint source, for which a new permit, permit modification, or

other control document would be required, as a result of any activity,

including, but not limited to, the following:

(i) Construction of a new regulated facility or modification of an

existing regulated facility such that a

new or modified permit is

required.

(ii) Modification

of an existing regulated facility operating under a

current permit such that the production capacity of the facility is

increased.

(iii) Addition of a new source of untreated or pretreated effluent

containing or expected to contain any BCC to an existing

wastewater treatment works, whether public or private.

---

(iv) A request for an increased limit in an applicable permit.

(v) Other deliberate activities that, based on the information

available,

could be reasonably expected to result in an increased

loading ofany BCC to any waters of the Great Lakes system.

(B) There is a new or increased permit limit for a substance that is not a

BCC, from any existing or new facility, either point source or nonpoint

source for which there is a permit or reviewable action, as a result of any

activity, and the new or increased permit limit will result in both of the

following:

(i) A calculated increase (calculated decrease for dissolved

oxygen) in the ambient concentration of the substance outside of

the designated mixing zone or volume, where applicable, in the

receiving

waterbody.

(ii) A Lowering of water quality that is greater than a de minimis

lowering

of water quality. As used in this clause, “de minimis

lowering

of water quality” occurs if all of the following are

satisfied for the substance under consideration and such a

determination

is consistent with applicable requirements and

limitations in section 11.4 of this rule, including appropriate

margin ofsafety allocations:

(AA) The proposed increase in mass discharged is less than

ten

percent (10%) of the unused loading capacity. The

proposed

increase in mass discharged shall be determined

as

follows:

-

ME

=

Proposed increase in mass discharged

Where M~

Monthly average mass effluent limitation for the parameter in the

proposed discharge.

—

Monthly average mass effluent limitation for the parameter in the existing

permit. Ifthe existing permit does not contain a monthly average mass

effluent

limitation forthe parameter, but does contain a weekly average or

daily

maximum mass limit, the existing weekly average or daily

maximum permit limit shall be converted into a monthly average value to

be used in this equation. Ifthe existing permit does not contain a mass

limit for the parameter, but does contain a concentration limit, this

concentration

limit shall be converted into a mass value, using the

discharge flow determined under section 1 1.4(a)(9) ofthis rule, to be used

in this

equation. Ifthe existing permit does not contain an effluent limit

for the parameter, the actual monthly average mass discharged shall be

used in this equation.

(BB) At least ten percent (10%) of the total loading

capacity remains unused after the lowering of water

quality.

(iii) The following definitions apply throughout this clause:

(AA) “Total loading capacity” means the product of the

applicable water quality criterion times the sum of the

ex1stin~ effluent flow and the stream design flow for the

---

waterbody in the area where the water quality is proposed

to be lowered, expressed as a mass loading rate.

(BB) “Unused loading capacity” means that amount of the

total loading capacity not utilized by point

source and

nonpoint source discharges. The unused loading capacity is

established at the time the request to lower water

quality is

considered.

---

Michigan

R 323.1098 Antidegradation.

(9) Except for water bodies designated as OSRWs, the following do not

constitute a lowering of water quality:

(a) Increased loadings within the existing capacity and processes that are

covered by the existing applicable control document, including the following:

(i) Normal operational variability.

(ii) Changes in intake water pollutants.

(iii) Increasing the production hours of the facility, for example,

adding

a second shift.

(iv)

Increasing the rate of production.

(b) Changes in a control document that are not a result of changes in pollutant

loading, but are the result of any of the following:

(i) Improved monitoring data.

(ii) New or improved analytical methods or sensitivity.

(iii) New or modified water quality values.

(c) Increased loadings of a pollutant which do not involve a BOO and which use

less than 10% of the unused loading capacity that exists at the time of the

request.

---

Ohio

OAC 3745-1-05

(D) Exclusions and waivers.

The exclusions and waivers described in paragraphs (D)C1)(a), (D)(1)(b), (D)(1)(d), (D)C1)(e) and (D)(3) of this

rule

do not apply to bloaccumulative chemicals of concern within the lake Erie basin.

(1) The following situations are excluded from the submittal and review requirements listed in paragraphs

(B)C2)(c) to (B)(2)(g), (C)(6) and (C)C8) of this rule.

(a) Any source discharging to limited quality waters.

(b) Any de minimis net increase determined using the following criteria:

(i) For general high quality waters, any net increase in the discharge of a regulated pollutant that does not

exceed ten per cent of the wasteload allocation to maintain water quality standards calculated using total

maximum daily load procedures, provided the proposed lowering of water quality does not exceed eighty per cent

of the wasteload allocation to maintain water quality standards calculated using total maximum daily load

procedures.

(ii) For superior high quality waters, other than lake Erie, any net increase in the discharge of a regulated

pollutant that results in less than a five per cent change in the ambient water quality concentration of the

receiving water as projected to occur using total maximum daily load procedures, provided the proposed lowering

of water quality does not exceed the portion of the remaining available assimilative capacity specified by the

director pursuant to paragraphs CC)(7)(d) and CE) of this rule.

(iii) For lake Erie any net increase in the discharge of a regulated pollutant that does not exceed ten per cent of

the water body pollutant assimilative capacity.

(iv) For state resource waters, any net increase in the discharge of a regulated pollutant that results in less than

a five per cent change in the ambient water quality concentration of the receiving water as projected to occur

under total maximum daily load procedures, provided the application of this exclusion is limited to a single

exclusion per each five-mile long segment of stream designated as state resource water, or a single exclusion per

lake, reservoir or wetland designated as state resource water.

---

NR 207.04

WISCONSIN ADMINISTRATIVE CODE

46

Unofficial Text (See Printed Volume). Current through date and Register shown on fltle Page.

b.

Ifthere are demonstrated, cost effective pollution control

alternatives which would prevent the significant lowering of wa-

ter quality as demonstrated under sub. (I) (d) I., water quality

based effluent limitations will be determined for the new or in-

creasedportion of the discharge based on the cost effective pollu-

tion control alternative which prevents the significantlowering of

water quality.

(d) The department shall determine water quality based efflu-

ent limitations using the water quality criteria orsecondaty values

derivedaccording to ch. NR 102, 103, 104 or 105 for substances

in the proposed new or increased discharge whose levels in the re-

ceiving water are of lesser quality than the water quality criteria

or secondary values for the receiving water upstream of, or adja-

cent to, the discharge site.

(e) In addition to the provisions ofpars. (a) to (c), ifthe depart.

ment determines that a proposed new or increased discharge will

result in lowering of waterquality in downstream outstanding re-

source waters or a proposed new discharge would result in lower-

ing ofwater quality in exceptional resource waters, other than for

the

reasons specified in s. NR207.03 (2) (a), water quality based

effluent limitations forsubstances in the new or increased portion

ofthedischarge will be set to preventthe lowering ofwaterquality

in the downstream outstanding or exceptional resource water.

Whenever s. NR 207.03 (2) (a) applies, effluent limitations shall

be established using the procedures in this section.

History:

cr.

Register, tebnsary, 1989, No. 398, art. 3—1—89;

renum.

(1) (a) 1. a.

tod.to be(1) (a) 1. b.and d.to f., er. (1) (a) l.a., a. and (d)I.e., am. (2) (e) (intro.).

I. and (d), Register, August, 1997, No. 500, eff. 9—1—97.

NR 207.05 Determining significant lowering of

wa-

terquality. (1)

INDICATOR PARAMETERS.

Foreach proposed new

orincreased discharge the department shall determine a list ofwa-

ter quality parameters for which the significantlowering ofwater

quality test will be applied. The list shall consist of:

(a) Biochemical oxygen demand/dissolved oxygen, ammo-

nia—nitrogen, and copper; or

(b) Some other list ofsubstances for which water quality crite-

ria or secondary values have been determined according to chs.

NR 102 to 105, not to exceed 10 parameters, which is determined

to be representative ofthe discharge.

(2)

APPLICATION INFORMATION.

Personsproposing a new orin-

creased discharge shall use the following procedure to demon.

strate to the department whether the discharge will result in a sig-

nificant lowering of water quality:

(a) Determinethe expected levels ofthe indicator parameters

in the discharge.

(b) Determineexisting levels of the indicator parameters up.

stream of, oradjacent to, the discharge site using applicable proce-

dures in chs. NR 102 and 106 or specified by the department if

none ofthose procedures apply. Existing levels shall be based on

the earliestsource ofdata after March 1, 1989 unlessa demonstra-

tion is made that there has been achange in existing levels result-

ing in a change in the assimilative capacityof the receivingwater,

in which case the existing levels shall be based on the data used

in the demonstration.

(c) Calculate expected levels in the receiving water ofthe indi-

catorparameters as aresult ofthe proposed newor increased dis-

charge. In calculating expected levels in the receiving water, the

following shall be used:

I. Applicable design low flow rates or dilution ratios for the

receiving water in ch. NR 102 or 106 or specified by the depart-

ment if none of those rates or ratios apply.

2. The daily average discharge loading rates for the new or

increased portion of a municipal discharge or the yearly average

discharge loading rates for the new or increased portion of an in-

dustrial discharge.

(d) Compare the expected levels in the receiving water ofeach

indicator parameter as calculated in par. (c) to:

1. The assimilative capacitymultiplied by one—third forall in-

dicator

parameters except dissolved oxygen; or

2. The

sum ofthe existing level multiplied by two—thirds and

the water quality criterion multiplied by one—third for dissolved

oxygen.

(3)

PROCEDURE wAIvER.

Persons proposing a newor increased

discharge may choose to waive the procedure in sub. (2), and pro-

ceed directlyto the economic and social development test ins. NR

207.04 (1) (c).

(4)

DEPARTMENT DETERMINATIONS.

The department shall de-

termine that a proposed new or increased discharge will result in

a significant lowering of water quality if either:

(a) The proposed new or increased discharge, along with all

other new orincreased dischargesafterMarch 1, 1989, taking into

account any changes in assimilative capacityover time that have

been demonstrated under sub. (2) (b), results in an expected level

ofanindicatorparameterin the receivingwater ofeitherofthe fol-

lowing:

I. Greater than one—third multiplied by the assimilative ca-

pacity forany indicatorparameter other than dissolved oxygen; or

2.

Greater than the sum of the existing level multiplied by

two-thirdsand the waterquality criterion multiplied by one—third

for dissolved oxygen.

(b) For a discharge to the Great Lakes system, the mass loading

to the receiving water ofany substance in the proposed new or in-

creased discharge having a bioaccumulation factor greater than

1000 would be increased.

History: Cr. Register, Februaty. 1989,No. 398.

eff.

3—1—89;

am. (1) (b) and (4)

(b), Register, August, 1997, No. 500, art. 9-1—97.

Register, August. 1997.

No.

500

---

Minnesota

7050.0185 NONDEGRADATION FOR ALL WATERS.

Subp. 2.

Definitions.

For the purpose of this part, the

following terms have the meanings given them:

G. “Significant discharge” means:

(1) a new discharge of sewage, industrial, or

other wastes greater than 200,000 gallons per day to any water

other than a class 7, limited resource value water; or

(2) an expanded discharge of sewage, industrial,

or other wastes that expands by more than 200,000 gallons per

day and that discharges to any water other than a class 7,

limited resource value water; or

(3) a new or expanded discharge containing any

toxic pollutant at a mass loading rate likely to increase the

concentration of the toxicant in the receiving water by greater

than one percent over the baseline quality. This determination

shall be made using:

(a) data collected from the receiving water

or from a water representative of the receiving water;

Cb) the entire once in ten—year, seven—day

low flow of the receiving water as defined in part 7050.0210

,

subpart 7; and

Cc) a mass balance equation that treats all

toxic pollutants as conservative substances.

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OH

ADC

3745-1-05

Page 1

OAC 3745-1-05 Ohio Admin. Code § 3745-1-05

BALDWIN’S OHIO ADMINISTRATIVE CODE

3745.

ENVIRONMENTAL PROTECTION AGENCY

CHAPTER 3745-1. OHIO SURFACE WATER OUALITY STANDARDS

Copr.

(C)

West Group 2001. All rights reserved.

Rules are current through December 31, 2000

Appendices are current through April 30, 1999

3745-1-05 ANTIDEGRADATION

(A) Definitions.

(1) “Available pollutant assimilative capacity” means thewater body pollutant assimilative capacity for a substance,

as determined in paragraph (A)(26)(a) of this rule, minus the background pollutant load, or the quantity for a

substance as calculated in paragraph (A)(26)(b) ofthis rule.

(2) “Background pollutant load” means the sum of: the upstream pollutant load of a substance; all tributary loads in

the segment; and the pollutant loads from discharges in the segment that discharge the pollutant but are not receiving

an allocation or permit limit for that pollutant. All portions

of

the background pollutant load shall be based upon

appropriate methods identified in the total maximum daily load procedures, and shall be determined for all

substances that impact the segment receiving the allocation.

(3) “Best available demonstrated control technology” means a wastewater treatment capable of meeting the effluent

limitations in paragraph (A)(3)(a) or (A)(3)(b) of this rule, or a treatment designed as in accordance with the

provisions of paragraphs (A)(3)(c) to (A)(3)(f) ofthis rule.

(a) For the discharge of sanitary wastewater from facilities using conventional treatment technologies, the effluent

limitations in table

5-1

ofthis rule.

(b) For the discharge of sanitary wastewater from altemative treatment technologies such as lagoon systems, land

application and controlled discharge systems, constructed

wetland systems or combined sewer overflow control

systems effluent limitations shall be developed on a case-by-case basis.

(c) For industrial direct discharges subject to federal effluent guidelines, the facility shall be designed to meet the

most stringent of the new source performance standards, best conventional pollutant control technology, best

available technology economically achievable and best practicable control technology currently available for the

appropriate categorical guidelines of 40 C.F.R.

(d) For categorical industrial indirect dischargers, the facility shall be designed to meet categorical pretreatment

standards for existing sources or

categorical pretreatment standards for new sources as contained in Chapter 3745-3

of the Administrative Code.

(e) For non-categorical industrial direct or indirect discharges, effluent limitations will be developed based upon

best

engineering/professional judgment.

(f) For wastewater discharges resulting from clean-up of response action sites contaminated with volatile organic

compounds, the facility shall include air- stripping, carbon columns, both, or equivalent treatment capable of

achieving final thirty-day average effluent limits of five micrograms per liter or less for each individually regulated

volatile organic compound.

(4) “Control document” means any authorization issued by a state or federal agency to any source of pollutants to

waters under its jurisdiction that specifies conditions under which the source is allowed to operate.

(5)

“Declining fish species” mean those native species that have declined in distribution across Ohio based on

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OH ADC

3745-1-05

Page 2

OAC

3745-1-05

Ohio Admin. Code

§

3745-1-05

collection records since 1 978compared to historical distributions of fish species documented in “Fishes of Ohio”

(Trautman, 1981). No later than ninety days after the effective date of this rule, the director, in consultation with the

director of the department ofnatural resources, shall establish and make available through public notice-a registry of

declining fish species. In the event that improved water quality results in the decline of any pollutant tolerant native

fish species the director may elect not to include such species on the registry if the ecological risks appear minimal.

The registry shall be revised periodically ifpublic comments or other circumstances justif~’.

(6) “Existing discharge” means a direct discharge ofpollutants to waters of the state in existence at the time of the

applicant’s request to transfer pollutant loading.

(7) “Existing effluent quality based permit limitations” mean discharge limits for specific pollutants specified in

national pollutant discharge elimination system permits issued prior to July 1, 1993 that were derived from an

analysis of effluent quality reported in monthly operating report data, including any negotiated limits that were

based in part upon an analysis of effluent quality reported in monthly operating report data.

(8) “Existing source” means any treatment works that were built and operational under the terms of a national

pollutant discharge elimination system permit prior to July 1, 1993, but does not include expansions or upgrades of

existing treatment works authorized pursuant to rule 3745-31 [FN1] of theAdministrative Code after July 1,1993.

(9) “High quality waters” mean all surface waters of the state except limited quality waters. Pursuant to division

(A)(2) of section 6111.12 of the Revised Code, five categories of high quality waters are hereby recognized and

described in this paragraph. Designations of specific water bodies shall follow the procedures in paragraph (E) of

this rule.

(a) “General high quality waters” are wetlands categorized as category 2 or 3 in accordance with rule 3745-1-54 of

the Administrative Code and other surface waters that arenot specifically designated limited quality waters, superior

high quality waters, outstanding national resource waters, outstanding high quality waters, or state resource waters.

(b) “Superior high quality waters” are surface waters that possess exceptional ecological values, exceptional

recreational values or both, and that have been so designated pursuant to paragraph (E) of this rule. Except as

provided below, exceptional ecological values shall be assessed based upon a combination of the presence of

threatened or endangered species and a high level of biological integrity. The following factors shall be considered

in detennining exceptional ecological value: providing habitat for Ohio or federal endangered species; providing

habitat

for Ohio threatened species; harboring stable populations of a declining fish species that coincide with the

presence of suitable habitat for that species, or that coincide with an essential migration path between areas of

suitable habitat for that species; and displaying a level of biological integrity equivalent to the exceptional

warmwater habitat index of biotic integrity and/or invertebrate community index criteria values listed in rule 3 745

1-07 of the Administrative Code

Water bodies that exhibit a pattem of biological integrity equivalent to index of biotic integrity and, where

applicable, invertebrate community index scores of fifty-six or greater at most sites are characteristic of a near-

pristine aquatic habitat. Such waters, as well as other ecologically unique water bodies that have essentially

undisturbed native faunas, but for which the biological criteria in rule 3745-1-07 of the Administrative Code do not

apply, may be considered as possessing exceptional ecological values without the presence of threatened or

endangered

species.

Exceptional recreational values may include providing outstanding or unique opportunities for recreational boating,

fishing or other personal enjoyment.

(c) “State resource waters” are surface waters so designated in rules

3745-

1-08 to 3745-1-30 of the Administrative

Code and all publicly owned lakes and reservoirs.

(d) “Outstanding national resource waters” and “outstanding high quality waters” are surface waters that have a

national ecological or recreational significance, and that have been so designated pursuant to paragraph (E) of this

rule. National ecological significance may include providing habitat for populations of federal endangered or

threatened species or displaying some unique combination of biological characteristics in addition to those factors

Copr. © West

2001 No Claim to Orig. U.S. Govt. Works

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NHST § 485-A:8

Page 1

N.H. Rev. Stat.

§

485-A:8

REVISED STATUTES ANNOTATED OF THE STATE OF

NEW HAMPSHIRE

TITLE L. WATER MANAGEMENT AND PROTECTION

CHAPTER 485-A. WATER POLLUTION AND WASTE DISPOSAL

CLASSIFICATION OF WATERS

Copyrightby the Director of Legislative Services ofthe State of

New Hampshire and West Group 2000. All rights reserved.

Current through End of 2000 Reg. Sess.

485-A:8 Standards for Classification of Surface Waters of the State

It shall be the overall goal that all surface waters attain and maintain specified

standards of

water quality to achieve

the purposes of the legislative classification. For purposes of classification there shall be 2 classes or grades of

surface waters as follows:

I. Class A waters shall be of the highest

quality and shall contain not more than either a geometric mean based on at

least 3 samples obtained over a 60-day period of 47 Escherichia coli per 100 milliliters, or greater than 153

Eseherichia coli per 100 milliliters in any one sample; and for designated beach areas shall contain not more than a

geometric mean based on at least 3 samples obtained over a 60-day period of 47 Escherichia coli per 100 milliliters,

or 88 Escherichia coli per 100 milliliters in any one sample; unless naturally occurring. There shall be no discharge

of any sewage or wastes into waters of this classification. The waters of this classification shall be considered as

being potentially acceptable for water supply uses after adequate -treatment.

II. Class B waters shall be of the second highest quality and shall have no objectionable physical characteristics,

shall contain

a

dissolved oxygen content of at least

75

percent of saturation, and shall contain not more than either a

geometric mean based on at least 3 samples obtained over a 60-day period of 126 Escherichia coli per 100

milliliters, or greater than 406 Escherichia coli per 100 milliliters in any one sample; and for designated beach areas

shall contain not more than a geometric mean based on at least 3 samples obtained over a 60-day period of 47

Eseherichia coli per 100 milliliters, or 88 Escherichia coli per 100 milliliters in any one sample; unless naturally

occurring. There shall be no disposal of sewage or waste into said waters except those which have received

adequate

treatment to prevent the lowering of the biological, physical, chemical or bacteriological characteristics

below those

given above, nor shall such disposal of

sewage or waste be

inimical to aquatic life or to the maintenance

of aquatic life in said receiving waters. The pH range for said waters shall be

6.5

to 8.0

except when due to natural

causes. Any stream temperature increase associated with the discharge of treated sewage, waste or cooling water,

water diversions, or releases shall not be such as to appreciably interfere with the uses assigned to this class. The

waters of this classification shall be considered as being acceptable for fishing, swimming and other recreational

purposes and, after adequate treatment, for tise as water supplies. Where it is demonstrated to the satisfaction of the

department that the class B criteria cannot reasonably be met in certain surface waters at all times as a result of

combined sewer overflow events, temporary partial use areas shall be established by rules adopted under RSA

485

A6 XI-c, which meet, as a minimum, the standards specified in paragraph LII.

III. The waters in temporary partial use areas established under paragraph LI shall be free from slick, odors,

turbidity, sludge deposits, and surface- floating solids of unreasonable kind or quantity, shall contain not less than

5

parts

per million of dissolved

oxygen; shall have a hydrogen ion concentration within the range of pH 6.0 to 9.0

except when due to natural causes; and shall be free from chemicals and other materials and conditions inimical to

aquatic life or the maintenance of aquatic life. These criteria shall apply during combined sewer overflow

discharges and up to 3 days following cessation of said discharge. At all other times the standards and uses

specified

in paragraph II shall apply.

TV.

Notwithstanding anything contained in this chapter, the department in submitting classifications relating to

Copr. © West 2001 No Claim to Orig. U.S. Govt. Works

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NH ADC ENV-WS 430.34

Page 3

N.H. Code Admin. R. Env-Ws 430.34

STATE OF

NEW HAMPSHIRE

OFFICE OF LEGISLATIVE SERVICES

DIVISION OF ADMINISTRATIVE RULES

DEPARTMENT OF ENVIRONMENTAL SERVICES DIVISION OF WATER

CHAPTER ENV-WS 400. PROTECTION OF STATE SURFACE WATERS

PART ENV-WS 430. SURFACE WATER QUALITY REGULATIONS

Current through February 1, 2001.

Env-Ws 430.34 Antidegradation

-

Class B Waters.

(a) All No degradation of any class B surface waters having an existing water quality exceeding the minimum

criteria of their legislated classifications shall occur unless as a result of an insignificant discharge, in (b) below, that

has been approved by the department in accordance with Env-Ws 430.36 through Env-Ws 430.45.

(b) Insignificant discharges shall consist of the following:

(1) Short term or intermittent discharges from activities such as:

a. Hydrostatic testing of pipelines;

b. Fire pump test water;

c. Reservoir maintenance;

d. Lake restoration;

e. Discharges from marina and boat maintenance docking facilities~

f. Uncontaminated stormwater discharges; or

g. Site cleanup activities;

(2) Permanent discharges such as:

a. Uncontaminated noncontact cooling water;

b. Unchlorinated swimming pool water; and

c. Water treatment plant backwash water;

(3) Nonpoint source runoff from facilities that employ best management practices established by the department;

and

(4) All other types of discharges that are not specifically mentioned above and which use less than 25% of the

remaining assimilative capacity of the surface water for each parameter that is found in the discharger’s effluent.

(c) Class B waters shall be maintained and protected from significant discharges, unless the applicant can

demonstrate to the department, in accordance with Env-Ws 430.36 through Env-Ws 430.45, that allowing limited

water quality degradation is necessary to accommodate important economic or social development in the area in

which the surface water is located.

<General Materials (GM)- Agency Filing History, References, Annotations,

or Tables>

Copr. © West 2001 No Claim to Orig. U.S. Govt. Works

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30 TX ADC 5 307.5

30 TAC § 307.5

Tex. Admin. Code tit. 30, § 307.5

TEXAS ADMINISTRATIVE CODE

TITLE 30. ENVIRONMENTAL QUALITY

PART 1. TEXAS NATURAL RESOURCE

CONSERVATION COMMISSION

CHAPTER 307. TEXAS SURFACE WATER

QUALITY STANDARDS

Current through September 30, 2000.

§ 307.5. Antidegradation

(a) Application. The antidegradation policy and

implementation procedures set forth in this section

shall apply to actions regulated under state and federal

authority which would increase pollution of the water

in the state. Such actions include authorized

wastewater

discharges,

TMDLs,

waste

load

evaluations, and any other miscellaneous actions,

such as those related to man- induced nonpoint

sources of pollution, which may impact the water in

the state.

(b) Antidegradation policy. In accordance with the

Texas Water Code, §26.003, the following provisions

establish the antidegradation policy of the agency.

(1) Tier 1. Existing uses and water quality sufficient

to protect those existing uses will be maintained.

Categories of existing uses are the same as for

designated uses, as defined in §307.7 of this title

(relating to Site- specific Uses and Criteria).

(2) Tier 2. No activities subject to regulatory action

which

would cause degradation of waters which

exceed fishable/swimmable quality will be allowed

unless it can be shown to the commission’s

satisfaction that the lowering of water quality is

necessary for important

economic

or

social

development. Degradation is defined as a lowering of

water quality by more than a de minimis extent, but

not

to the extent that an existing use is impaired.

Water quality sufficient to protect existing uses will

be maintained. Fishable/swimmable waters are

defined as waters which have quality sufficient to

support propagation of indigenous fish, shellfish, and

wildlife and recreation in and on the water.

(3) Tier 3. Outstanding national resource waters are

defined as high quality waters within or adjacent to

national parks and wildlife refuges, state parks, wild

and scenic rivers designated by law, and other

designated areas of exceptional recreational or

ecological

significance. The quality of outstanding

national resource waters will be maintained and

protected.

(4) Discharges which cause pollution that are

authorized by the Texas Water Code, the Federal

Clean Water Act, or other applicable laws will not

lower water quality to the extent that the Texas

Surface

Water Quality Standards are not attained.

(5)

Anyone discharging wastewater which would

constitute a new source of pollution or an increased

source of pollution from any industrial, public, or

private project or development will be required to

provide a level of wastewater treatment consistent

with the provisions of the Texas Water Code and the

Clean Water Act (33 United States Code,

§§

1251 et

seq.). As necessary, cost-effective and reasonable

best management practices established through the

Texas Water Quality Management Program shall be

achieved for nonpoint sources of pollution.

(6) Application of antidegradation provisions shall

not preclude the commission or executive director

from

establishing

modified thermal discharge

limitations consistent with the Clean Water Act,

§

316(a) (33 United States Code, §1326).

(c) Antidegradation implementation procedures.

(1) Implementation for specific regulatory activities.

(A) For TPDES permits for wastewater, the process

for the antidegradation review and public coordination

is described in the standards implementation

procedures.

(B) For federal permits relating to the discharge of

fill or dredged material under Federal Clean Water

Act, §404, the antidegradation policy and public

coordination is implemented through the evaluation of

alternatives and mitigation under Federal Clean Water

Act, §404(b)(l). State review of alternatives,

mitigation,

and requirements to protect water quality

may also be conducted for federal permits which are

subject to state certification, as authorized by Federal

Clean Water Act, §401 and conducted in accordance

with Chapter 279 of this title (relating to Water

Quality Certification).

(C) Other state and federal permitting and regulatory

activities which increase pollution of water in the state

are

also

subject to the provisions

of the

Page 1

Copr. © West 2001 No Claim to Orig. U.S. Govt. Works

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30 TX ADC S 307.5

Page 2

antidegradation policy as established in

§307.5(a)

and

(b) of this title (relating to Antidegradation).

(2)

General provisions for implementing the

antidegradation policy.

(A) Tier 1 reviews will ensure that water quality is

sufficiently maintained so that existing uses are

protected. All pollution which could cause an

impairment

of water quality is subject to Tier 1

reviews. If the existing uses and criteria of a

potentially affected water body have not been

previously determined, then the antidegradation

review will include a preliminary determination of

existing uses and criteria. Existing uses will be

maintained

and protected.

(B) Tier 2 reviews apply to all pollution which could

cause

degradation

of water quality where water

quality

exceeds levels

necessary to

support

propagation of fish, shellfish, wildlife, and recreation

in and on the water (fishable/swimmable quality).

Guidance for determining which water bodies exceed

fishable/swimmable quality is contained in the

standards implementation procedures. For dissolved

oxygen, analyses of degradation under Tier 2 will

utilize the same critical conditions as are used to

protect instream criteria. For other parameters,

appropriate conditions may vary. Conditions for

determining degradation will be commensurate with

conditions for determining existing uses.

The highest

water quality sustained since November 28,

1975

(in

accordance with

EPA Standards Regulation 40 CFR

131) defines baseline conditions for determinations of

degradation.

(C) Tier 3 reviews apply to all pollution which could

cause degradation of outstanding national resource

waters. Outstanding national resource waters are

those specifically designated in this chapter.

(D) When degradation of waters exceeding fishable!

swimmable quality is anticipated, a statement that the

antidegradation policy will be pertinent to the permit

action will be included in the public notice for the

permit application or amendment.

If no degradation

is anticipated, the

public

notice will so state.

(E) Evidence can be introduced in public hearings, or

through the public comment process, concerning the

determination of existing uses and criteria; the

assessment of degradation under Tier 1, Tier 2, and

Tier 3; the social and economic justification for

lowering water quality; requirements and conditions

necessary to preclude

degradation; and any other

issues which bear upon the implementation of the

antidegradation policy.

(F) Interested parties will be given the opportunity to

provide comments

and

additional

information

concerning the determination of existing uses,

anticipated impacts of the discharge, baseline

conditions, and the necessity of the discharge for

important economic or social development if

degradation

of water quality is expected under Tier

2.

(G) The antidegradation policy and the general

provisions for implementing the antidegradation

policy apply to the determination of TMDLs and to

waste load evaluations which allow an increase in

loading.

If the TMDL or waste load evaluation

indicates that degradation of waters exceeding

fishable/swimmable quality is expected, the public

hearing notice will so state. Permits which are

consistent with an approved TMDL or waste load

evaluation under this antidegradation policy will not

be subjected to separate antidegradation review for

the specific parameters that are addressed by the

TMDL

or waste load evaluation.

Source: The provisions of this

§307.5

adopted to be

effective July 10, 1991, 16 TexReg 3400; amended to

be effective July 13, 1995, 20 TexReg 4701; amended

to be effective August 17, 2000, 25 TexReg 7722.

30 TX ADC

§

307.5

END OF

DOCUMENT

Copr. © West 2001 No Claim to Orig. U.S. Govt. Works

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CERTIFICATE OF SERVICE

I, Katherine D. Hodge, the undersigned, certify that I have served a copy of the

attached

POST-HEARING COMMENTS OF THE ILLINOIS ENVIRONMENTAL

REGULATORY GROUP upon:

Ms. Dorothy M. Gunn

Clerk

ofthe Board

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Marie E. Tipsord, Esq.

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite

11-500

Chicago, Illinois 60601

by overnight delivery by depositing said documents in an Airborne Express drop box in

Springfield, Illinois, on March 19, 2001, and upon:

SEE ATTACHED SERVICE LIST

by

depositing said documents in the United States Mail in Springfield, Illinois on

March

19, 2001.

Katherine D. Hodge

IERG:OOl/R DocketsIFilIROl-13 COS —Post-Hearing Comments

---

CLE~

OVFICE

SERVICE LIST

Ms.

Kay Anderson

American

Bottoms

RWTF

One American Bottoms Road

Sauget, Illinois 62201

Frederic P. Andes, Esq.

Barnes

& Thornburg

2600 Chase Plaza

10 South LaSalle Street

Chicago,

Illinois 60603

Ms. Christine Bianco

Director of Regulatory Affairs

Chemical Industry Council ofIllinois

9801 West Higgins Road

Suite

515

Rosemont, Illinois 60018

Christine S. Bucko, Esq.

Assistant Attorney General

Illinois Attorney General’s Office

Environmental Bureau

188 West Randolph Street

20th Floor

Chicago, Illinois 60601

Mr. Jack Darin

Sierra Club,

Illinois Chapter

200

North Michigan Avenue

Suite

505

Chicago, Illinois 60601

Mr. Albert F. Ettinger

Environmental Law & Policy Center

35 East Wacker Drive

Suite 1300

Chicago, Illinois 60601-2110

Susan

M. Franzetti, Esq.

Sonnenschein Nath & Rosenthal

8000 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

R

2 o Z~¶V1

STAThOFILLli QIS

pollUtiQfl

Control

Board

James T. Harrington, Esq.

Ross & Hardies

150 North Michigan Avenue

Suite 2500

Chicago, Illinois 60601

John M. Heyde, Esq.

Sidley & Austin

Bank One Plaza

10 South Dearborn Street

Chicago, Illinois 60603

Richard

J.

Kissel, Esq.

Gardner, Carton & Douglas

Quaker Tower

321 North Clark Street

Suite 3400

Chicago, Illinois 60610-4795

Sharon Marie Neal, Esq.

Law Department

CoinEd

-

Unicom

125 South Clark Street

Chicago, Illinois 60603

Mr. Jerry Paulson

McHenry County Defenders

804 Reginact

Woodstock, Illinois 60098

Mr. Irwin Polls

Metropolitan Water Reclamation District

Environmental Monitoring

6001 West Pershing Road

Cicero, Illinois 60804-4112

Ms. Cindy Skrudkrud

4209 West Solon Road

Richmond, Illinois 60071

---

Connie Tonsor, Esq.

Assistant Counsel

Division of Legal Counsel

Illinois Environmental Protection,Agency

1021 North Grand Avenue East

Post

Office Box 19276

Springfield, Illinois 62794-9276

Ms. Georgia Vlahos

Department of the Navy

Naval Training Center

2601A Paul Jones Street

Great Lakes, Illinois 60088-2845

Charles W. Wesselhoft, Esq.

Ross & Hardies

150 North Michigan Avenue

Suite 2500

Chicago, Illinois 60601

Mr. Stanley Yonkauski

Illinois Department ofNatural Resources

524 South Second Street

Springfield, Illinois 62701

IERG:OO

1/Fil/RO 1-I 3/Service List

—

Post-Hearing Comments