I’ROPOSED AMENDMENTS TO:
?UBLIC PARTICIPATION RULES IN
35
ILL. ADM. CODE PART 309 NPDES
PERMITS AND PERMITTING PROCEDURES
,r~~ç’-~-~ ‘M “~
CLERK’S OFFICE
JAN 20 20O~
STATE
OF IWNOIS
pollution ContrOl Board
NOTICE OF
FILING
TO:
DorothyM.Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA
FEDERAL EXPRESS)
Marie Tipsord
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA
FIRST CLASS MAIL)
(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 the COMMENTS OF THE
ILLINOIS ENViRONMENTAL REGULATORY GROUP, copies ofwhich are herewith
served upon you.
Dated: January 19, 2004
Robert A. Messina
General Counsel
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, Illinois 62703
(217) 523-4942
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGUL
‘TORY GROUP,
By:
ROBERT A.
MESSIINA
BEFORE
TH~k1I~QJSPOLLUTION CONTROL BOARD
IN THE MATTER O1~
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R03-19
(NPDES Rulemaking)
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THIS FILING SUBMITTED ON RECYCLED PAPER
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BEFORE THE ILLINOIS POLLUTIQ~O~~c~ARD
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PROPOSED
INTHEMATTERAMENDMENTSOF:
TO:
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R03-19
PUBLIC
PARTICIPATION RULES IN 35
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(NIPDES
Rulemaking)
ILL. ADM. CODE
PART 309 NPDES
)
PERMITS AND PERMITTING PROCEDURES
)
)
COMMENTS OF THE
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY
GROUP
(“IERG”), by one of its attorneys, Robert A. Messina, and submits the following
comments in the above-referenced matter to the Illinois Pollution Control Board
(c’.
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11
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siaung a5 IOnOv~TS.
IERG submits the following comments in response to the proposed rulemaking
entitled “Proposed Amendments to: Public Participation Rules in 35 Ill. Adm. Code Part
309 NPDES Permits and Permitting Procedures (R03-l9).” There have been numerous
opportunities to provide testimony and comments in this rulemaking, and for that IERG
thanks the Board. Therefore, without addressing those comments that have already been
made, IERG limits its comments today to the remaining issues below.
First, IERU testified at the November 19, 2003 hearing (hereinafter, “hearing”)
that the language proposed by the proponents in Section 309.143(a) did not include
•
modifying language found immediately following that section in the federal regulations
(See Transcript,
page 11). Further, IBRG testified that Illinois’ Section 309.143 should
include, in a new subsection (b), additional federal language that further explains an
excursion or violation of a state Water Quality Standard. That modifying language,
found at 40 CFR 122.44(d)(1)(ii), provides:
When determining whethei a discharge causes, has the reasonable
potential to cause, or contributes to an in-stream excursion above a
narrative o r n umeric criteria w ithin a State water q uality s tandard, the
Agency
shall use procedures which account for existing controls on
point and nonpoint sources ofpollution, the variability of the pollutant or
pollutant parameter in the effluent, the sensitivity of the species to toxicity
testing (when evaluating whole effluent toxicity), and where appropriate,
the dilution ofthe effluent in the receiving water.
This language was not found objectionable by counsel for the proponents
(See
Transcript,
page 13, beginning at line 21).
Second, IERU testified at the hearing that the language proposedby the
proponents in Section 309.1 13(a)(5) is both not required and potentially costly and
burdensome to the Agency
(See Transcript,
page 10). With regards to this language, the
benefit to the environment does not equal the cost to the Agency, it will likely add to the
time and expense of undertaking the NPDES permit writing effort, and will only delay a
process which already takes a great deal of time now. Further, the Illinois EPA testified
that the benefit resulting from such language would be either small or non-existent, and
that the language would add to the workload of the Agency
(See Transcript,
pages 17-18,
and again, pages 29-30). Therefore, IERG asks that this language be stricken from the
proposal.
2
Finally, IBRG would like to address one issue that was raised both at hearing and
during numerous meetings between the various stakeholders. Throughout this
rulemaking process, and even before a proposal was even filed, IERG and its Members
have triedto understand the precise scope ofthe language that was proposed which
would allow second, or third, or subsequent public hearings. Many ofour questions have
been addressed, but one issue remains. Must the Agency reopen the public comment
period and perhaps hold another hearing if the applicant submits material to the Agency
after the close ofthe comment period to respond to public comment? Can the Agency
utilize and rely upon that information provided by the applicant without reopening the
comment period?
When asked these questions at hearing, Mr. Frevert testified that, oftentimes, the
Agency must solicit additional data or information from an applicant in order to address
issues raised during the comment period. Further, he noted that an applicant’s ability to
respond to public comment must, in some circumstances, be extended past the close of
the comment period. Finally, Mr. Frevert suggested that sometimes this information is of
such nature that additional public comment is necessary, but sometimes this information
does not necessitate further public comment
(See Transcript,
pages 22-23),
IERG concurs with this assessment, but is concerned that Section 309.120, as
drafted, is not clear on this issue, and could be misinterpreted to require additional public
comment in all instances when an applicant submits data or information after the close of
the comment period. IERG asks the Board to include language in this section consistent
with Mr. Frevert’s testimony to ensure that the Agency is granted sufficient discretion.
3
In the event that the Board adopts amendments to the Part 309 regulations, IERG
requests that they be consistent with the above comments.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
•
By:
~
Robert A. Me~sina
Dated: January 19, 2004
Robert A. Messina
General Counsel
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, Illinois 62703
(217) 523-4942
4
CERTIFICATE OF SERVICE
I, Robert A.
Messina, the undersigned, certify that I have served a copy of the
COMMENTS OF THE ILLINOIS
ENVIRONMENTAL
REGULATORY GROUP upon:
Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
SEE ATTACHED SERVICE LIST.
Marie Tipsord
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
by depositing said documents in Airborne Express Mail and in the United States Mail in
Springfield, Illinois on January 19, 2004
Robert A. M~ssina
.C. Blanton
ackwell Sanders Peper Martin, LLP
00 Main, Suite 1000
msas City, MO 64108
mes Daugherty
iorn Creek Sanitary District
‘0 West End Ave.
aicago Heights, IL 60411
bert Ettinger
wiromnental Law & Policy Center
B. Wacker Drive, Suite 1300
aicago, Illinois 60601-2110
•sa M. Frede
hemical Industry Council
~0East Devon Ave., Suite 239
es Plaines, Illinois 60018
Lines T. Barrington
055
& Hardies
50 North Michigan, Suite 2500
hicago, Illinois 60601
on Hill
etropolitan Water Reclamation District
JO East Erie
hicago, Illinois 60611
red L. Hubbard
~ttorneyAt Law
15 North Gilbert Street, P0 Box 12
anville, Illinois 61834-0012
ricky McKinley
vanston Environment Board
23 GreyAvenue
vanston, Illinois 60202
~winPolls
4etropolitan Water Reclamation, Dist. Of Chicago
001 West
~icero,Illinois 60804
/lichael G. Rosenberg
/Ietropolitan Water Reclamation District
00 East Erie Street
~hicago,Illinois 60611
Larry
Cox
Downers Grove Sanitary District
2710 Curtiss Street
Downers Grove, Illinois 60515
John Donahue
City of Geneva
1800 South Street
Geneva, Illinois 60134
Susan M. Frarizetti
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Dorothy Gunn
Clerk, Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
Roy M. Harsch
Gardner, Carton & Douglas
Suite 3700, 191 North Wacker Drive
Chicago, Illinois 60606
Katherine Hodge
Hodge Dwyer Zeman
3150 Roland Avenue, P0 Box 5776
Springfield, Illinois 62705-5776
Frederick D. Keady
Vermilion Coal Company
1979 Johns Drive, P0 Box 688
Glenview, Illinois 60025-0688
Robert A. Messina
Illinois
Environmental Regulatory Group
215 East Adams Street
Springfield, Illinois 62701
Erika K. Powers
Barnes & Thornburg
10 South LaSalle, Suite 2600
Chicago, Illinois 60201
Sue A.Schulz
General & Associate Corporate Counsel
300 North Water Works Drive
Belleville, Illinois 62223-9040
njay Sofat
inois Environmental Protection Agency
21 North Grand Ave. East
‘ringfield, Illinois 62794-9276
arieTipsord
:torney, Pollution Control Board
0 West Randolph, Suite 11-500
iicago, Illinois 60601
nrne Tonsor
inois Environmental Protection Agency
)21 North Grand Ave. East
)ringfield, Illinois 62794-9276
Joel Sternstein
Environmental BureauNorth
188 West Randolph Street, 20th Floor
Chicago, Illinois 60601
Charles Wesselhoft
Ross & Hardies
150 North Michigan
Chicago, Illinois 60601
Mary G. Sullivan
Illinois-American Water Company
P 0 Box 24040
Belleville, Illinois 62223-9040
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