NOTICE OF FILING

RECEIVED

NOTICE OF FILING

RECEIVED

CLERK’,S

OFfl’~

JUN 1 6 2003

STATE OF IWNOIS

Pollution Control Board

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 ofthe Illinois~

Pollution Control Board an original and nine copies ofthe COMMENTS OF THE

ILLINOIS ENVIRONMENTAL REGULATORY GROUP, copies ofwhich are herewith

served upon you.

Dated: June 13, 2003

Robert A. Messina

General Counsel

Illinois Environmental Regulatory Group

3150 Roland Avenue

Springfield, Illinois 62703

(217) 523-4942

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

REGULATORY GR9,~JP,

By:

ROBERT’A. MESSINA

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

PROPOSED AMENDMENTS TO:

)

PUBLIC PARTICIPATION RULES IN 35

)

ILL. ADM. CODE PART 309 NPDES

)

PERMITS AND PERMITTING PROCEDURES

)

R03 -19

(NPDES Rulemaking)

THIS FILING SUBMITTED ON RECYCLED PAPER

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 Federal Express and in the United States Mail in

Springfield, Illinois on June 13, 2003.

Robert ~Messina

R03-l9 Service List

Amendments to Part 309 Subpart A

June

12, 2003

Blackwell Sanders Peper Martin, LLP

Downers Grove Sanitary District

Thorn Creek Sanitary District

City of Geneva

Environmental Law & Policy Center

Sonnenschein Nath & Rosenthal

Chemical Industry Council

Clerk, Pollution Control Board

Ross & Hardies

Gardner, Carton & Douglas

Metropolitan Water Reclamation District

Hodge Dwyer Zeman

Attorney At Law

Vermilion Coal Company

Evanston Environment Board

Illinois Envirdnmental Regulatory Group

Metropolitan Water Reclamation, Dist. Of Chicago

Barnes & Thornburg

Metropolitan Water Reclamation District

General & Associate Corporate Counsel

Illinois-American Water Company

Illinois Environmental Protection Agency

Assistant Attorney General

Environmental Bureau North

Attorney, Pollution Control Board

Ross & Hardies

address

2300 Main, Suite 1000

2710 Curtiss Street

700 West End Ave.

1800 South Street

E. Wacker Drive, Suite 1300

8000 Sears Tower

250

East Devon Ave., Suite 239

100 West Randolph, Suite 11-500

150 North Michigan, Suite 2500

Suite 3700, 191 North Wacker Drive

100 East Erie

3150 Roland Avenue, P0 Box 5776

415 North Gilbert Street, P0 Box 12

1979 Johns Drive, P0 Box 688

223 GreyAvenue

215 East Adams Street

6001 West

10 South LaSalle, Suite 2600

100 East Erie Street

300 North Water Works Drive

P0 Box 24040

1021 North Grand Ave. East

188 West Randolph Street,

20th

Floor

Lname

fname

company

citystate

Zip

Blanton

W.C.

Cox

Larry

Daugherty

James

Donahue

John

Ettinger

Albert

Franzetti

Susan M.

Frede

Lisa M.

Guim

Dorothy

Harrington

James T.

Harsch

Roy M.

Hill

Ron

Hodge

Katherine

Hubbard

Fred L.

Keady

FrederickD.

McKinley

Vicky

Messina

Robert A.

Polls

Irwin

Powers

Erika K.

Rosenberg

Michael G.

Schulz

Sue A.

Sullivan

Mary G.

Sofat

Sanjay

Tonsor

Connie

Stemstem

Joel

Tipsord

Marie

Wessellioft

Charles

Kansas City, MO

Downers Grove,

Illinois

Chicago Heights, IL

Geneva, Illinois

Chicago, Illinois

Des Plaines, Illinois

Chicago, Illinois

Springfield, Illinois

Danville, Illinois

Glenview, Illinois

Evanston, Illinois

Springfield, Illinois

Cicero, Illinois

Chicago, Illinois

Belleville, Illinois

64108

60515

60411

60134

6060 1-2110

60606

60018

60601

60606

60611

62705-5776

61834-0012

60025-0688

60202

62701

60804

60201

60611

62223-9040

100 West Randolph, Suite 11-500

150 North Michigan

Springfield, Illinois

62794-9276

Chicago, Illinois

60601

Chicago, Illinois

60601

RE~C~IVB~

CL~RK~S

OFFICE

JUN 162003

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

STATE OF

ILLINOIS

IN THE MATTER OF:

pollution

Control

Boar4

)

PROPOSED AMENDMENTS TO:

)

R03-19

PUBLIC PARTICIPATION RULES IN 35

)

(NPDES Rulemaking)

ILL. ADM. CODE PART 309 NIPDES

)

PERMITS AND PERMITTING PROCEDURES

)

COMMENTS OF THE

ILLINOIS ENVIRONMENTAL REGULATORY GROUP

NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP

(“IERG”), by one ofits attorneys, Robert A. Messina, and submits the following

comments in the above-referenced matter to the Illinois Pollution Control Board

(“Board”), stating as follows:

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 (R03-19).” IERG thanks the Illinois

Pollution Control Board for the opportunity to submit these comments today. IERG

reserves the right to supplement or modify these comments at the close oftestimony.

ERG is a not-for-profit Illinois corporation comprised of 67 member companies

engaged in industry, commerce, agriculture, and other related activities, that are regulated

by governmental agencies that promulgate, administer or enforce environmental laws and

regulations. ERG was organized to promote and advance the interests ofits members

before governmental agencies, such as the Illinois Environmental Protection Agency

(“Illinois EPA” or “Agency”) and Illinois Pollution Control Board (“Board”), and before

judicial bodies, such as the Illinois Courts. Moreover, ERG is an affiliate ofthe Illinois

State Chamber of Commerce, which has more than 5,000 members in the State. Finally,

a great number of ERG’s members would be affected by this rule.

ERG first became involved in this matter in the fall of2002, at which time the

proponents began to circulate drafts ofthe proposal to various interested parties,

including representatives of the Illinois EPA and members ofthe regulated community.

ERG has reviewed the proposal, as well as the comments prepared by the Illinois EPA,

and shared it with our members. We believe, for the reasons detailedbelow, that the

proposal developed by the proponents is unnecessary and potentially very problematic for

the continued operation of the NPDES program implemented by the Illinois EPA. In

short, ERG urges the Board to not adopt the proponents’ proposal or, in the alternative,

to adopt certain provisions submitted by the Illinois EPA in comments filed on April 29,

2003.

The Proponents Have Not Sufficiently Justified the Proposal

ERG does not believe that the proponents have provided any support sufficient to

justify the adoption ofits proposal. Briefly, the proponents have argued in their various

filings that their changes are necessary to remedy the supposed inadequacies in Illinois’

regulations concerning public participation in the NPDES permitting process. In

considering this argument, there are several points that need be made. First, the public

participation provisions which are the subject ofthis rulemaking were adopted by this

Board nearly thirty years ago to comply with the public participation requirements found

within the Clean Water Act (CWA). Further, these same regulations were both reviewed

and approved by the United States Environmental Protection Agency, making it very

clear that USEPA believes Illinois’ regulations are sufficient and consistent with the

CWA. Since this program’s delegation, there have been no changes in the federal

requirements or objection or comment by the USEPA that have necessitated any changes

to the Board’s public participation regulations.

Second, the proponents have argued that many ofthe provisions are either

required by the CWA or are necessitated by language in the Permit Writer’s Manual. This

simply is not the case. The Clean Water Act makes clear that states, within certain

parameters, may draft their own regulations governing the issuance ofNPDES permits.

This is why USEPA approved Illinois’ regulations even though they were not identical to

the federal regulations; USEPA deferred to Illinois’ decisions regarding Illinois’ NPDES

program, including Illinois’ decision regarding public participation. Likewise, states are

not required to copy the federal permit writer’s manual. Illinois has included in its

regulations all provisions that are required by federal law, and Illinois is free to make its

own decision with regard to other provisions that are not requiredby federal law.

Considering that the current NPDES permitting program has served the State,

public, and regulated community well for nearly thirty years, the Board should be loathe

to make changes when the justification for such changes is minimal, at best. Further,

when the potential harm to a program

—

in the form of significant time delay, EPA staff

demands and increased cost to both the Agency and applicant

—

would likely exacerbate a

situation where the Agency already has more than a thousand NPDES permits awaiting

action, IERG urges the Board to proceed with great hesitation when being asked to adopt

language where sufficient justification has not been shown.

Section by Section Analysis

Section 309.105(f): This provision is unnecessary, vague, and dangerously broad.

First, as the Agency has pointed out in its comments, the provisions contained in Part 309

as it currently exists were adopted to assure a fair opportunity for public comment. A

vague restatement ofthis fairness notion is not necessary. Second, the use of “fair

opportunity” is an invitation to delaythe permitting process even further through

litigation ofwhat may or may not be fair. Ifthere is a specific concern, it should be

addressed through specific language.

Section

309.105(g):

This provision is both unnecessary and vague. Illinois’

NPDES program has been delegated to it by the United States Environmental Protection

Agency. As several coinmenters have pointed out, and as delegation clearly implies, the

Clean Water Act does not require delegated programs to be identical to the federal

program. This is evident upon examination ofthe different requirements contained in the

Code of Federal Regulations for both delegated and non-delegated programs.

Section 309.107(c): While it is certainly unnecessary to include this provision in

the regulations, ERG is not concerned with this provision.

Section 309.108(c): This provision was the subject of some discussion between

all of the various stakeholders at a meeting following the second hearing. IERG concurs

with the language as modified by the Agency in its April 29, 2003 comments. It is

ERG’s understanding that this language is merely a codification ofthe Agency’s current

practice, and does not place any additional requirements upon the Agency.

Sections 309.108(e), 309.117, and 309.123: These three sections concern the

same issue

—

the Agency record. ERG is concerned that this language creates an

additional requirement upon the Agency to create a third file, besides its main file and

permit file, and make that third file available to the public. First, this is a redundant

exercise. Second, the time and expense of undertaking this effort will only delay a

process that is already a lengthy one. ERG therefore concurs with the Agency’s

comments for both sections, that its alternative language for subsection (e) be adopted

and that Section 309.123 be stricken. Further, ERG urges the Board to not adopt the

language proposed by the proponents in Section 309.117. ERG has discussed this issue

with the Agency following the filing ofits comments, and understands that the Agency

intended to urge the Board to strike this language as well.

Sections 309.109(a), 309.112, 309.119, 309.121, 309.122: All of these sections

concern the same issue

—

the opportunity for allowing further public comment in certain

circumstances. ERG has very significant concerns with the way the key provisions,

namely those in Section 309.12 1, are drafted. It is our position that this language is

vague, could cause confusion, and would impose an administrative hardship upon the

Agency. ERG does believe, however, that the Agency has provided a potentially

acceptable alternative to the language proposed by the proponents. ERG still has

questions it would like to ask the Agency at hearing as to the specifics ofthis language,

but in the meantime, it believes its proposal provides a vastly superior alternative to that

proposed by the proponents. ERG therefore concurs with the Agency’s comments for

these sections, that proposed language in Section 309.109(a), 309.112, 309.119, and

309.122 be stricken and its alternative language for Section 309.121 be adopted.

There is one other issue present, beyond the one discussed above. At the

stakeholder meeting following the second hearing, the parties discussed the last sentence

of Section 309.119. Specifically, the parties discussed possible confusion in those

instances where the Agency sets a specific effective date for a permit. Therefore, ERG

urges the Board to adopt the following change to that section:

Following the public hearing, the Agency may make such modifications in

the terms and conditions of proposed permits as may be appropriate and

shall transmit to the Regional Administrator for his approval a copy of the

permit proposed to be issued unless the Regional Administrator has

waived his right to receive and review permits of its class. The Agency

shall provide a notice of such transmission to the applicant, to any person

who participates in the public hearing, to any person who requested a

public hearing, and to appropriate persons on the mailing list established

under Sections 309.109 through 309.112.

Such notice shall briefly

indicate any significant changes which were made from terms and

conditions set forth in the draft permit. All permits become effective

when issued, unless an effective date is specified in the permit.

It is ERG’s understanding that this change was inadvertently omitted by the Agency in

its April 29, 2003, comments, but that it does support this change.

Section 309.109(b): This change is acceptable. It is ERG’s understanding that

the Agency already has the authority to extend the comment period when it deems

necessary.

Section 309.110(f): ERG concurs with the comments filed by the Agency, and

urges the Board to move the language to Section 309.113 as suggested by the Agency.

Section 309.1 13(a)(5-9): IERG concurs with comments filed by other

stakeholders that the language in these new paragraphs is both not required and

potentially costly and burdensome to the Agency. This is a concern due to the time and

expense ofundertaking the NPDES permit writing effort, and will only delay a process

which already takes a great deal oftime now. However, if the Board believes that the

current language is not sufficient, a view apparently not taken by the USEPA, then ERG

would urge the Board to adopt those changes submitted by the Agency.

Section 309.1 13(a)(1 1): ERG concurs with this language as modified by the

Agency in its April 29, 2003, comments. It is ERG’s understanding that this language

would constitute a codification of the Agency’s current practice, and would not place any

additional burden upon the Agency.

Section 309.114(c): This is, of course, acceptable.

Section 309.120: Again, this language concerns the Agency record and, as

discussed above, ERG opposes the adoption of this provision, both for the reasons

discussed above and for the reasons given by the Agency in its April 29, 2003,

comments.

Section 309.143(a): ERG initially had several concerns with this language.

After having met with all of the stakeholders following the second hearing, ERG had its

questions and concerns addressed by both the Agency and the proponents. Because of

the understanding reached at that meeting, ERG can now support the language proposed

by the proponents.

Section 309.l46(a)(2 and

5):

Again, as discussed immediately above, this

language was the subj ect of some discussion at the stakeholder meeting after the second

hearing. Again, IERG believes its concerns were addressed and can support the language

proposed by the proponents as modified by the Agency in its April 29, 2003, comments.

Conclusion

In conclusion, the Illinois Environmental Regulatory Group submits that the

proponents have not justified their proposal and that the Board should not adopt any

revisions to Part 309. However, in the event that the Board does adopt any amendments

to the Part 309 regulations, ERG requests that they be consistent with the above

comments.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP,

By:___

Robert A. essina

Dated: June 13, 2003

Robert A. Messina

General Counsel

Illinois Environmental Regulatory Group

3150 Roland Avenue

Springfield, Illinois 62703

(217) 523-4942

8