BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PROPOSED AMENDMENTS TO:
PART 309 SUBPART A-
35 Iii. Adm. Code 309.105, 309.7, 309.8,
309.9, 309.10, 309.12, 309.13, 309.14,
309.117, 109.119, 309.143, 309.147; and
PROPOSED 35111. Adm. Code 120 through
122—NPDES PERMITS AND PERMITTING
PROCEDURES
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RECEAVED
CLERK’S
Q~P’~P
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JUN
52003
STATE OF ILLINOIS
Pollution Control Board
TO:
NOTICE OF FILING
SEE ATTACHED SERVICE LIST.
PLEASE TAKE NOTICE that on Thursday, June 5, 2003, we filed the attached
Metropolitan Water Reclamation District’s Comments to Proposed Revisions and
Amendments
with the Clerk of the Pollution Control Board, a copy of which is herewith served
upon you.
Michael G. Rosenberg/Ronald M. Hill
Metropolitan Water Reclamation
District ofGreater Chicago
100 East Erie Street
Chicago, IL 60611
(312)
751-6583
METROPOLITAN WATERRECLAMATION
DISTRICT OF GREATER CHICAGO
BY:
~
~~omey~
Michael G. Rosenberg, i
CERTIFICATE OF SERVICE
I,
~-4/()
Jtp//e V13I(~,~t
,
being duly sworn on oath, certify that I caused a
copy of the attached Comments
of the Metropolitan Water
Reclamation District of Greater
Chicago to be sent via first class U.S. Mail to the individuals identified on the attached service list
their addresses as shown, with proper postage prepaid, from 100 E. Erie Street, Chicago, Illinois, at
or near the hour of4:00 p.m., this 5th day ofJune, 2003.
SUBSCRIBED and SWORN to before
me this 5th day of June, 2003.
Notary Public
“OFFICIAL SEAL”
Rosalie Bottarj
Notary Pubjic, State of Illinois
My Commission Exp. 04/10/2006
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R03-19
(NPDES Rulemaking)
RH:me
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Service List
Fredric P. Andes
Barnes & Thornburg
2600 Chase Plaza
10 South
LaSalle Street
Chicago, IL 60603
W. C. Blanton
Blackwell, Sanders, Peper, Martin, LLP
2300 Main, Ste. 1000
Kansas City, MO 64108
Larry Cox
Downers Grove Sanitary District
2710 Curtiss Street
Downers Grove, IL
60515
John Donahue
City of Geneva
1800 South Street
Geneva, IL 60134
Mathew Dunn
Illinois Attorney General’s Office
James R. Thompson Center
100 West Randolph Street
Chicago, IL 60601
Susan Franzetti
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, IL
60606
Dorothy Gunn
Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, IL 60601
Roy M. Harsch
Gardner, Carton & Douglas
191 North Wacker Drive, Suite 3700
Chicago, IL
60606
Katherine Hodge
Hodge, Dwyer, Zeman
3150 Roland Ave.
P.O. Box
5776
Springfield, IL 62705-5776
James Daughtery
Thorn Creek Sanitary District
700 West End Ave.
Chicago Heights, IL 60411
Dennis L. Duffield
Director ofPublic Works and Utilities
921 E. Washington Street
Joliet, IL 60431
Albert Ettinger
Environmental Law and Policy Center
35 W. Wacker Dr., Ste. 1300
Chicago, IL 60601-2110
Lisa Frede
Chemical Industry Council
250 E. Devon Aye, Ste. 239
Des Plaines, IL 60018
James Harrington
Roos & Hardies
150 N. Michigan, Suite 2500
Chicago, IL 60601
Ron Hill
Metropolitan Water Reclamation District
100 East Erie
Chicago, IL 60611
Fred L. Hubbard
Counsel for Vermillion Coal Company
415 North Gilbert Street
P.O. Box 12
Danville, IL 6 1834-0012
Service List
Gerald T. Karr
Assistant Attorney General
Environmental Bureau
188 West Randolph, 20th Floor
Chicago, IL 60601
Robert T. Lawley
Illinois Department ofNatural Resources
One Natural Resources Way
Springfield, IL 62702-1271
Vickey McKinley
Evanston Environmental Board
223 Grey Ave.
Evanston, IL 60202
Frederick Keady
Vermillion Coal Co.
P.O. Box
688
Glenview, IL 60025-0688
Clarie A. Manning, Attorney
111 N. Sixth Street
Springfield, IL 62701
Alec Messina, General Counsel
3150 Roland Avenue
Springfield, IL 62703
Robert Messina
Illinois Environmental
215 B. Adams
Springfield, IL 62701
Regulatory Group
Irwin Polls
Metropolitan Water Reclamation District
6001 West Pershing Road
Cicero, IL 60804
Erika Powers
Barnes & Thornburg
10 South LaSalle, Ste. 2600
Chicago, IL 60201
Thomas G. Safley
Hodge, Dwyer, Zeman
3150 Roland Ave
P.O. Box
5776
Springfield, IL 62705-5776
Sonjay Sofat
IEPA
1021 N. Grand Ave. East, Mail Code #21
Springfield, IL 62794-9276
Mary Sullivan
Illinois-American Water Company
P.O. Box
24040
Belleville, IL 62223-9040
Connie Tonsor
IEPA
1021 N. Grand Ave. East, Mail Code #21
Springfield, IL 62794-9276
Michael Rosenberg
Metropolitan Water Reclamation District
100 B. Erie
Chicago,IL 60611
Sue A. Schulz
General & Associate Corporate Counsel
300 N. Waterworks Drive
Belleville, IL 62223-9040
Joel Sternstein
Assistant Attorney General
188 West Randolph Street, 20th Floor
Chicago, IL 60601
Marie Tipsord
Attorney, Pollution Control Board
100 West Randolph, Suite 11-500.
Chicago, IL 60601
Charles Wesselhoft
Ross & Hardies
150 North Michigan
Chicago, IL 60601
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
REC~yED
IN THE MATTER OF:
)
CLERK’S OFFV.E
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JUN
52003
PROPOSED AMENDMENTS TO:
)
PART 309 SUBPART A-
)
STATE OF ILLINOIS
35 Iii. Adm. Code 309.105, 309.7, 309.8,
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R03-19
Pollution Control Board
309.9, 309.10, 309.12, 309.13, 309.14,
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(NPDES Rulemaking)
309.117, 109.119, 309.143, 309.147; and
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PROPOSED 35111. Adm. Code 120 through
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122—NPDES PERMITS AND PERMITTING
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PROCEDURES
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METROPOLITAN WATER RECLAMATION DISTRICT’S
COMMENTS TO PROPOSED REVISIONS
AND AMENDMENTS
The Metropolitan Water Reclamation District of Greater Chicago (“District”), submits
the following comments concerning the proposed amendments and adoptions to 35 Ill. Adrn.
Code Part 309, Subpart A, NPDES Permits and Permitting Procedures.
The District is a unit of local government created by the state legislature for the purpose
of collecting and disposing of sewerage, reducing pollution of the waterways and preventing
flooding. 70 ILCS
2605/1, et seq.
(“District Act”). The District’s service area is most of Cook
County. In its capacity as a public health agency, the District operates seven treatment facilities
in its service area, serves five million residents and treats an average of 1.4 billion gallons of
sewage daily. The District has seven wastewater treatment plant NPDES permits issued by the
Illinois Environmental Protection Agency (“IEPA”).
The District is in favor of public participation in the NPDES permitting process.
However, many ofthe proposed amendments utilize language that creates an amorphous standard
that injects excessive subjectivity into the application and interpretation ofthe rules. The District
believes that the rules now in effect provide adequate participation without imposing procedural
delays that will remove the certainty and finality at various stages in the permitting process.
Such delays and uncertainties are not only unfair to the participants, but also increase the costs of
the proceedings.
In these comments, the District will address several of the proposed amendments that the
District believes should not be adopted or, at the very least, modified prior to adoption.
Section 309.105(f)
The current rules provide notice and opportunity forpublic participation. The Petitioners’
proposed subsection (f~seeks to purportedly enhance public participation by prohibiting issuance
of an NPDES permit if the public “has not had a
fair opportunity
to comment on all
substantial
terms
of the permit.” (emphasis added). The terms “fair opportunity” and “substantial terms”
are vague. This language will not improve public participation, but simply enable a party to
challenge any permit regardless of the amount of public participation by alleging that although
opportunity to comment was provided, it was not”fair.” This will only inject further uncertainty,
delay and expense.
Section 309.120
The District concurs with the recommendations ofthe Agency in its April 29, 2003, filing
that the proposed provisions not be adopted. The proposed amendments are troubling in several
respects.
For example, the Petitioners proposed language removes the certainty and finality ofthe
comment period by only requiring that parties raise “all
reasonably ascertainable
issues and
submit all
reasonably available
arguments.. .“(emphasis added). This language will enable
parties to advance issues and arguments after the close of the comment period, and in all
2
likelihood, could result in additional motion practice or hearings on the issue of whether such
issues or arguments were reasonably ascertainable or available -during the comment period.
The District also has concerns with the wording of the last line. While the District
obviously has no objection to the Board granting extensions of time, such requests should be
discretionary with the Board, made within the original comment period and be based upon a
showing of good cause. In the event section 309.120 is adopted, which the District opposes, the
-District proposes changing the final line to read as follows: “Additional time may be granted at
the discretion of the Agency if a commenter requests such additional time within the original
comment period and sets forth good cause for such additional time.”
Section 309.121
The District is opposed to the addition ofthjs section because it removes the certainty and
finality of the permitting process, and replaces it with the possibility of numerous rounds of
public comment. For example, in the first sentence of paragraph one, what exactly is the
standard to be utilized in determining whether “the procedures ofthis paragraph could expedite
the decision making process.” In the second sentence, those submitting comments need only
submit “all
reasonably available
factual grounds supporting their position.”
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What if such
grounds are allegedly not “reasonably available?” Can they then seek to reopen the record again
when such grounds purportedlybecome “reasonably available?”
In the event these provisions are adopted, paragraph 4 should be limited and more certain.
For purposes of clarity and in order to ensure that requests are made in a timely fashion, the
District suggests the following modifications to the Petitioners’ proposed language:
A comment period of longer than 60 days will often ~
be necessary in complicated
proceedings to give commenters a reasonable opportunity to comply with requirements of
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this section. Commenters may request k~gefup to an additional 60 days to comment
e-emmeperi~ds-andthey-shall be giant~1- -hextent~-the-yappea~-fieeessar-y~-Such
requests for additional time must be submitted prior to the expiration of the original
comment period and set forth good cause for the request. The Agency shall have the
discretion to grant or deny such request.
The District has reviewed the proposed language ofthe Agency suggested in its April 29~
filing. The District supports the language suggested by the Agency.
Section 309.122(A)
The District concurs with the Agency’ suggested language for section 309.121, which
would eliminate the need for 309.122. With respect to the Petitioners’ proposed language, the
District objects to the lack of finality in the process.
As a matter offairness and in the interest ofmoving the process along, finality is required
at various points in the proceedings. To the extent further comments are accepted on a new draft
permit, those comments should be restricted to those parts of the permit that have been
substantially modified. Parties will have already had an opportunity to comment on those
portions of the permit not modified and should not be granted a second bite at the apple.
Therefore, the second sentence should be changed to read as follows:
The Agency i~y ~~il restrict comments
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on the modified draft permit to significant
issues on which there has not been a previous opportunity to comment.
WHEREFORE, the Metropolitan Water Reclamation District of Greater Chicago,
requests that in the event the Board adopts any amendments to the Illinois Administrative Code,
they be consistent with the District’s comments.
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Respectfully submitted,
Metropolitan Water Reclamation
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District ofGreater Chicago
~
Michael G. Rosenberg, Attorney
(J
DATED: June~,2003
Metropolitan Water Reclamation
District ofGreater Chicago
Michael G. Rosenberg
Ronald M. Hill
100 East Erie Street
Chicago, Illinois 60611
(312)751-6583
THIS FILING IS SUBMITTED ON RECYCLED PAPER
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STATE OF ILLINOIS
COUNTY OF COOK
I, Louis Kollias, being first duly sworn, on oath, depose and state that I am the Assistant Chief
Engineer of Research & Development for the Metropolitan Water Reclamation District of Greater
Chicago, and that to the best of my knowledge and belief, the facts contained in the Metropolitan Water
Reclamation District’s Comments to Proposed Revisions and Amendments to 35 Ill. Adm. Code Part 309,
Subpart A, NPDES Permits and Permitting Procedures (R03 -19) are true and correct.
Louis Kollias, Assistant Chief Engineer of
Research & Development, Metropolitan Water
Reclamation District ofGreater Chicago
Subscribed and Sworn to Before Me
This ~ay
ofMay 2003.
/1
Rosalie Bottari
~d~Ei~L MCo~rnissionExp~04/10J2OO6
Notary Public
THIS FILING IS SUBMITTED ON RECYCLED
PAPER