RECEJVED
CLERK’S
OFFICE
APR
7 2003
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF IWNOIS
-
- -
Pi.,lLtUibn Control Board
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO:
)
R03-19
PUBLIC PARTICIPATION RULES IN 35
)
(NPDES Rulemaking)
ILL. ADM. CODE PART 309 NPDES
)
PERMITS AND PERMITTING
)
PROCEDURES
)
NOTICE OF FILING
To:
All persons named in the Certificate of Service
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution
Control Board the APPEARANCE and PREFILED TESTIMONY OF FREDRIC P. ANDES, on
behalf ofthe Illinois Coal Association, copies of which are herewith served upon you.
Fredric P. Andes
Counsel for Illinois Coal Association
• Dated: March 24, 2003
Fredric P. Andes
Barnes ~ Thornburg
10 S. LaSalle Street, Suite 2600
Chicago, Illinois 60603
(312) 214-1313
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
IN THE MATTER OF:
•
)
•)
PROPOSED AMENDMENTS TO:
)
R03-l9
PUBLIC PARTICIPATION RULES IN 35
)
(NPDES Rulemaking)
ILL. ADM. CODE PART 309 NIPDES
)
PERMITS AND PERMITTING
)
PROCEDURES
)
•
APPEARANCE
OF
FREDRIC P. ANDES
I hereby file my appearance in this proceeding, on behalfof the Illinois Coal Association.
•
_____
Fredric P. Andes
Dated: March 24, 2003
Fredric P. Andes
Barnes & Thomburg
10 S. LaSalle Street, Suite 2600
Chicago Illinois 60603
(312) 214-1313
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
PROPOSED AMENDMENTS TO:
) •
R03-19
PUBLIC PARTICIPATION RULES IN 35
• )
(NPDES Rulemaking)
ILL. ADM. CODE PART 309 NPDES
)
PERMITS AND PERMITTING
)
PROCEDURES
)
PREFILED TESTIMONY OF
FREDRIC P. ANDES
My name is Fredric P. Andes, and I am an attorney representing the Illinois Coal
Association (“ICA”).
The ICA is an organization formed to foster, promote and defend the interests ofthe
Illinois Coal Association. Our members include active producers of coal and owners of coal
reserves. Our members’ mining and reclamation operations are required to have NPDES permits
issued by the Agency under Part 309, and those members would be affected by the proposed
revisions to Part 309.
The Proponents indicate that the proposedrulemaking is intended to insure adequate
opportunities forpublic participation in the NPDES pennitting process, and to insure compliance
with the federal Clean Water Act. (“Statement ofReasons” filed January 13, 2003 by
Environmental Law and Policy Center ofthe Midwest, et aL, p. 1. This document is hereinafter
cited as “Proponents’ Statement”). The ICA recognizes the importance ofpublic participation in
the NPDES permitting process.
However the ICA is cpncemed that the effect ofmany if not all ofthe proposed rule
revisions would be to increase procedural delays in the NPDES permitting process and multiply
EThis filing is submitted on recycled paper as defined in 35111. Adm. Code 101 .202.1
opportunities for opponents ofprojects requiring NPDES permits to tie up those pennits in
frivolous procedural challenges.
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- - • - -
-
The ICA is also concerned that one ofthe Proponents’ main objectives appears to be to
-~ -
reverse interpretations ofthe Part 309 regulations made by-the Board in Prairie Rivers Network
.. • -.
v. illinois Environmental Protection Agency and Black Beauty Coal Company, PCB 01-112
(August 9, 2002) aff’d. sub nom. Prairie Rivers Network v. Illinois Pollution Control Board;
Illinois Environmental Protection Agency; and Black Beauty Coal Company No. 4-01-0801
• -.
(October 24, 2Q02) (the “Prairie Rivers Network case”). The Proponents appear to assume that
the fact that the Illinois Court of Appeals upheld the Board’s construction of its Part 309
regulations somehow proves the necessity for revisions to those reguintions. That is simply not
the case. As the Proponents acknowledge, “Illinois currently normally affords the public an
opportunity to comment on all substantive provisions ofNPDES permits.” Proponents’
Statement at p. 4. We believe that because the current public participation procedures provided
by the Board rules are sufficient to satisfy all state and federal requirements, the proposed
amendments should not be adopted.
Our comments on the Proponents’ specific rulemaking proposals follow, organized by
section.
SECTION
309.105
Proposed New Subsection 309.105(f)
Proponents would add a new subsection (f) to this section to require denial ofNPDES
permits whefl “The public has not had a fair opportunity to comment on all substantial terms of
the permit.”
The proposed revision should not be adopted. While the ICA does not dispute the
importance ofpublic participation in NPDES permitting, existing Part 309 regulations already
2
• provide ample opportunity for public.participation. ~
35 Ill. Adm. Code Sections 309.109,
309.110, 309.111, 309.115, 309.116. The proposed revisionwouldnot enhaucepubjic
.
— -.
participation in the NPDES permitting process; it would simply add an additional basis for
challenging a permit issued by the Agency. No matter now ample the opportunity for public
comment on a particular NPDES permit mayhave been, under the proposed revision a
dissatisfied commenter could. always contend that he or she had been denied “fair opportunity to
comment.” Because the standard set forth in the proposal is vague, such contentions would be
difficult to evaluate and decide, with the result that NIPDES permits could be unnecessarily
delayed by lengthy administrative appeals.
The Proponents may be correct when theypredict that not many permits would be
overturned on appeal under their proposed language. (Proponents’ Statement, p. 4). The ICA
believes, however, that the proposal, if adopted, could result in manyNIPDES permits being
unnecessarily delayed by appeals based on this vague standard..
_•i•
As explained in greater detail in our following comments on the specific procedural
changes ~uggestedby the Proponents, the ICA believes that the Board’s Part 309 regulations
already provide for ample public participation in the NPDES permitting process. A permit
already maybe challenged if IEPA fails to comply with the public participation requirements
established in the Board rules. That protection is. sufficient to ensure that no pennit is issued
-
without providing the public with the required opportunity to comment. The proposal stating
that permits may not be issued without a “fair opportunity to comment” is therefore -unnecessary,
and simply injects a new, vague, and undefined term into the well-defined and established
procedures available for public participation. We urge that .the Proponents’ proposed new
subsection 309.105(f) not be adopted.
3
Proposed New Subsection
309.105(g)
-
This proposed subsection would prohibit the issuance of an NPDES permit if thè~érmit,
permit conditions, or the procedures followed in drafting or issuing the permit were inconsistent
- - - -~
“with any applicable federal law.” Proponents .claimthat this language is necessary to correct an
error in the Illinois Appellate Court’s decision affirming the Board’s decision in the Prairie
Rivers Network case. (Proponents’ Statement, p.
5).
That is not the case. In the Prairie Rivers
Network case, proponent Prairie Rivers Network did argue that the Agency should have followed
various United States Environmental Protection Agency (“USEPA”) procedural regulations
(some ofwhich are included in the proposed rules that proponent has now put forward). The
Board correctly found those regulations not to be applicable to Illinois NIPDES permitting. (See,
~
Prairie Rivers Network v. Illinois Environmental Protection Agency and Black Beauty Coal
Company, PCB 01-112, August 9, 2001, slip op. at p. 19; Prairie Rivers Network v. Illinois
Protection Control Board,et al., No. 4-01-0801, October 24, 2002, shp op. at pp. 17-18).
The ICA believes that the proposed language would at best engender confusion over the
applicability of specific USEPA regulations to Illinois NIPDES permitting. This is ofparticular
concern given the structure of40 CFR Parts 122-124, which contain some requirements
applicable to state permitting and others which, are not applicable. We note that USEPA already
has authority to object to state NPDES permits under 40 CFR Section 123.44 when USEPA
believes that the permit would be inconsistent with federal law.
The ICS submits that the Proponents’ proposed subsection 309.105(g) is at best
unnecessary and at worst could create confusion and delays in NPDES permitting.
SECTION 309.107
.
Proponents propose to add a new subsection 309.107(c) which would require the Agency
to notify the Illinois Department ofNatural Resources (“IDNR”) of any NPDES permit
4
spplication oncethe application is determined to be complete, unless otherwise agreed in a
memorandum ofunderstanding to be reached between the Agency and IDNR.- -The IFCA belie~ès
-.
that this is a matter best left to the Agency’s discretion. We urge that the Board not adopt this
proposed rule.
. . “
-
-
SECTION 309.108
Proposed Revision of Subsection 309.108(c)
Proponents propose that 35 Ill. Adm. Code 309.108(c) be revised to elaborate the
requirements for the statement the Agency is required to make as to the basis ofthe permit
conditions included in the draft permit. The ICA has no comment on this proposed language.
Proposed New Subsection 309.108(e)
Proponents propose a new subsection 3 09.108(e) which would require the Agency to
prepare a “draft” administrative record on its tentative decision to issue a permit and would
require the record to demonstrate that any permitted discharge will not cause or contribute to the
--
violation ofany applicable ~ater quality standard.
While the ICA recognizes the importance of the preparation of a proper administrative
record, we are concerned that the proposal is actually intended to reverse or circumvent the
holdings ofthe Board and Appellate Court in the Prairie Rivers Network case that a third party
NPDES permit appellants have the burden of showing that the contested permit should not have
been issued. The proposed language would shift the burden in permit appeals without
justification, through its’mandate that the Agency’s administrativerecord must satisfy the
requirements of the proposed new subsection. Moreover, since the Agency is already obligated
to maintain a record, including the documents submitted to it by the applicant arid third parties,
this change is’ unnecessary.
5
The only support offered by the Proponents for the proposed new subsection is a
quotaiion from the USEPA NPDES Permit Writers’ Manual. (Proponents’ ‘Stát~thèr~t~.7). The
Proponents admit that the manual “is not strictly mandatory on sic state NPDES programs..
.“
(~j~).The manual actually carries the following disclaimer on its title page:
“The statements in this document are intended solely as guidance.
This document is not intended, nor can it be relied on, to create any
rights enforceable by any party in litigation with the United States.
EPA and State officials may decide to follow the guidance
-
provided in this document, or to act at variance with the guidance,
based on an analysis ofspecific site circumstances. This guidance
maybe revised withoutpublic notice to reflect changes in EPA’s
policy.”
By its terms, the manual is not even binding on USEPA itself. Moreover~the quoted
language from Section 11.1.1 ofthe manual does not support the language Proponents would add
to Section 309.108; nor do 40 CFR Sections 124.9 or 124.18, the USEPA regulations which are
cited in the manual as prescribing the contents ofthe administrative record in a.USEPA
permitting action (these regulations are not applicable to state programs).
The TCA urges the Board not to adopt’ proposed 309.108(e).
.
‘
SECTION 309.109
Subsection 309.109(a)
Proponents propose a revision of 35 Ill. Adm. Code Section 309.109(a). The proposed
revision is to conform the language of this subsection to substantive changes in the NPDES
permitting procedure which the Proponents would make in 35 ill. Adm. Code Sections 309.121
and 309.122. The ICA opposes this change as unnecessarybecause the proposed revisions to
Sections 309.121 and 309.122 should not be adopted, as discussed below in our comments on the
proposed revisions to those sections.
6
Proposed Revision ofSubsection 309.109(b)
The ICA has no comment on this proposed revision.
,
.
- ‘ - -
::‘
‘
—
-
SECTION 3 09.110
Proponents propose that a new subsection 309.110(f) be added to this regulation, which
specifies the content of the public notice ofan NFDES permit application required to be given by
the Agency. The Proponents’ proposed new subsection would require additional information.
The Proponents state that 40 CFR Section 124. 10(d)(v) requires that state NPDES permit notices
provide all of the information which would be required by their proposed language. The
Proponents allege that 40 CFR Section 123.125 requires the Board to adopt “rules regarding
notice that are at least as stringent as the federally required language.” (Proponents’ Statement,
p.8).
The ICA believes that the proposed new subsection is unnecessary and could lead to
confusion.
The experience ofthe ICA’s members in NPDES permitting is that the information
sought tobe requiredby this proposed language is generally included in the Agency’s public
notices, as the Proponents appear to concede. (Proponents’ Statement, p. 8). The ICA does not
agree with the Proponents that 40 CFR Section 123.25 requires states to adopt rules identical to
the state
—
applicable regulations in 40 CFR Part 124; the federal regulations requires that the
procedures followed by stateNPDES authorities be the same or more stringent. The Board’s
Part 309 rules were approved by USEPA even though they do not include language identical to
all ofthe voluminous state
—
applicable USEPA Part 124 regulations. The proposed revisions are
therefore unnecessary to achieve compliance with federal requirements.
If the Board should see merit in expressly incorporating the requirements of40 CFR
Section 124.10(d)(v) into Part 309, the ICA would suggest that the Board tiot employ the
7
Proponents’ redrafted federal language. The Proponents’ language would require a description
of“procedures for the formulation of final determinations” where the federal règtiratfôrfrefers to
“comment procedures.” Proponents’ language is much more vague than the relatively
straightforward federal language and appears well suited
-
if not calculated
-
to serve as a basis
• for permit challenges based on alleged public notice deficiencies.
The ICA urges that the Board not adopt the Proponents’ proposed subsection 309.110(f),
but also urges that ifthe Board does adopt the proposal, the Board should substitute the phrase
“comment procedures” for “procedures for the formulation of final determinations.”
SECTION 309.112
The Proponents propose to amend this section to add references to Sections 309.12 1 and
309.122. This proposed revision is to accommodate changes proposed to the former section and
the proposed adoption ofa new section. The ICA believes that the revision proposed for this
section is unnecessary because the substantive changes should not be made forthe reasons set..-
‘
forth in our comments on those sections.
-
SECTION 309.113
Proponents propose that subsection 309.113(a) be amended to add six new subdivisions
with additional information which the Agency would be required to include in its fact sheet
required for certain NPDES permits.
Proposed new subdivision
(a)(5)1
is a paraphrase oflanguage from 40 CFR Section
124.8(a). As noted above in our comments on the proposed revisions to 35 Ill. Adm. Code
Section 309.110, states are required to follow the procedures set forth in the federal. rule, not
incorporate identical language in their own NPDES regulations. Based on our members’
Proponents would renumber existing Section 309.11
3(a)(5)
as 309.11 3(a)(1 0), so that 309.1 13(a)(5)-(9)
and
—(11) in
Proponents’ proposed are new subdivisions.
8
experience with their own NPDES permits, the ICA believes that the Agency already includes, a
discussion of facts and questions considered in its fact sheets.. Proposed-Section 309~l
13(a~(5)
appears to be unnecessary.
-
The remaining proposed subdivisions would require information not required by any
federal regulation,2 but are taken from the NPDES Permit Writers Manual. As discussed above,
this manual is a guidance dOcument, not binding on USEPA or on the state NPDES authorities.
The ICA questions why the Agency should be bound to follow USEPA guidance as a legal
requirement when USEPA has not even seen fit to bind itself to follow the guidance document.
We are again concerned that the effect of the proposal would be to delay NPDES permitting
procedures and to provide technical grounds for objections to permits. The ICAurges that the
new subdivisions proposed to be added
SECTION
to Section 309.113(a)
309.117
not be adopted.3
Proponents propose to add a sentence to 35 Ill. Adm. Code Section 309.117 requiring tie
Agency “or the permit applicant” to identify the “documents or other materials referred to or
relied on.~.
.
to support the tentative decision.
. .“
at the pre-decision public hearing. Proponents
cite the NPDES Permit Writers’ Manual and the need for a clear definition of the content ofthe
administrative record forpurposes of appeal. (Proponents’ Statement, p. 9).
The ICA submits that the Proponents’ rationale does not support the proposed language,
which would require identification of the administrative record at a pre-decisional public
hearing. As explained below in the ICA’s comments on proposed Section 309.123, ‘the
administrative record in Agency permitting decisions is already defined by existing Board
2
Proponents state that the additional information requirements
are
“necessary.
.
.to complywith 40 CFR Section
124.56”
(Proponents’- Statement, p. 8) but do not explain why. None of the specific proposed requirements appears in 40 CFR
Section
124.56.
‘
-
~ The proposal also includes a minor revision to existing
35
Ill. Adm. Code Section 309.1 13(a)(5)(A), which Proponents
would renumber as Section 309.1 13(a)(l0)(A). The ICA has no comment on this revision.
9
procedural regulations. Even if there were a need for greater specificity in this definition, the
Proponents offer no justification forrequiring identification ofthis record at a ~-d~disional
public hearing.4 The ICA urges that the proposed-revision to Section 309.117 not be adopted.
-
SECTION 309.119-
- -
Proponents propose a revision of 35 ill. Adm. Code 309.119. Theproposedrevisionis to
-
conform the language ofthis subsection to substantive changes in the’ NPDES permitting
procedure which the Proponents would make in 35 Ill. Adm. Code 309.12 1 and 309.122. The
ICA opposes this change as unnecessarybecause the proposed revisions to Sections 309.121 and
309.122 should not be adopted, as discussed below in our comments on the proposed revisions to
those sections.
SECTION 309.120
Proponents propose a new Section 309.120 which would require both public commenter
and permit applicants to “raise all reasonably ascertainable issues and submit all reasonably
available arguments supporting their position by the close ofthe public comment period...”
Proponents cite 40 CFR Section 124.13, which they concede is not binding on states, •as support
for this proposal, and state that “There is no excuse for failing to present arguments to Illinois
EPA during the comment period.” (Proponents’ Statement, pp. 9-10). The ICA has no objection
to the proposal except to the extent that it would apply to permit applicants. We believe that the
proposal ignores the fundamental difference between pennit applicants and public comrn~nters.
The public participation procedures provided by the Board’s Part 309 rules provide the-
mechanism for interested members ofthe public to present theirviews and any pertinent facts on
a proposedpermit to the Agency. The permit applicant and the Agency, however, are engaged
~
The cited portion ofthe NPDES Permit Writers’ Manual, paragraph 11.1.1, merelyrecommends that the record be available
to the public.
10
in an ongoing process, which entails direct communication regarding the proposed permit. There
is no justification for limiting issues and arguments which may be raised by a pennitapplicanfto
those
raised in the public comment period. The ICA urges that if the proposed section is
adopted, referen~esto “the applicant” be deleted.
-
SECTION 309.121; SECTION 309.122
Proponents propose two new sections for reopening the public comment period.
Proponents state that proposed Section 309.121 is based on 40 CFR Section 124.13(a) and that
proposed Section 309.122 is based on 40 CFR Section 124.14(b). (Proponents’ Statement, p.
10). Proponents concede that 40 CFR Section 124.14 is not binding on states (Ibid.) but contend
that the decisions ofthe Board and ofthe Appellate Court in the Prairie Rivers Network case
demonstrate that these new provisions are necessary to permit effective public participation.
(Ibid,atpp. 10-li).
The ICA submits that the Board’s own decision in the Prairie Rivers Network undercuts
the Proponents’ argument. The Board did not find, as the Proponents assume, that Prairie Rivers
Network ~shouldhave had additional opportunity to comment, but that the Board’s Part 309
regulations precluded Prairie Rivers Network from further comment. The Board actually found
that under the existing Part 309 regulations, Prairie Rivers Network failed to show that it was not
afforded a meaningful opportunity to participate in the permitting process. Prairie Rivers
Network v. IEPA and Black Beauty Coal Company, PCB 01-112 (August 9, 2002) slip op. at p.
19.
‘
The ~CAurges ‘that the proposed new sections not be adopted. Neither proposed section
is necessary, and the ICA is’ concerned that they could cause substantial delays in the NPDES
permitting process.
-
Proposed Section 309.121 is extremely unclear as drafted, and would create
confusion in permit reviews. Both proposed sections would lend themselves to endless rounds of
11
comment (or to disputes in administrative appeals as to whether further rounds ofcomment
should have been allowed). The Proponents suggest a far-fetched hypothetical situafiëii’iri which
“effluent limits or critical monitoring” requirements are deleted from a draft permit prior to
issuance of the final permit. (Proponents’ Statement, p. 1 1)-. The ICA submits that the more
likely scenario is one in which the Agency makes revisions to a draft permit in an effort to
address commenters’ concerns, and the commenters submit additional comments which dismiss
the Agency’s efforts as insufficient. It is important to keep in mind that IEPA is already
required to notify stakeholders if significant changes are made, and that if theyobject to these
changes, an appeal is the proper avenue for redress. The agency has to balance the interest in
obtaining opportunity to comment with the interest in obtaining timely permit decisions to ensure
economic stability, by allowing dischargers to continue existing operations and to modify or
expand those operations without undue disruptions or uncertainty. The existing regulations have
achieved the necessary balance while complying with all state,and federal requirements, and
..-
should not be disturbed.
-
.
SECTION 309.123
Proponents propose a new Section 309.123 to define “record before the Agency.”
Proponents state that this proposal is intended to prevent confusion in appeal hearings.
(Proponents’ Statement, p. 14).
The Board already has a regulation, 35 Ill. Adm. Code Section 105.212(b), which
specifies the content of the Agency’s administrative record. Proponents do not argue that the
definition ofthe record in Section 105.212 is deficient; they simply ignore the rule and propose a
new rule. This revision is unnecessary and the ICA recommends that it not bp adopted.
12
SECTION 309.143
Proponents propose that a new subsection 309.143(a) be added
tQ
require ‘~that’effluenf
limitations in NIPDES permits control all pollutants sufficiently such that sic the discharge does
not cause or contribute to a violation ofwater quality standards including narrative standards.”
(Proponents’ Statement, p. 14). Proponents argue that this language must be added to the
Board’s Part 309 regulations because it appears in 40 CFR Section 122.44(d)(l)(i). (Ibid., p.
15).
As noted above in our comments on the proposed revision to 35 Ill. Adm. Code Section
3 09.110, Illinois is not required to adopt language identical to the USEPA regulations even
where the regulations are applicable to state programs. The Proponents imnplicitly concede this
by proposing to incorporate only one paragraph of subsection 122.44(d), perhaps 10 ofthe
total content ofthe federal subsection.
Proponents do not make any attempt to explain why existing 35 Ill. Adm. Code Section
309.141(d)(1), which requires NPDES permits to contain “any more stringent
limitation.
.
.necessary to meet water quality standards...” does not adequately address the
relationship between NPDES permit effluent limitations and water quality standards. Their
proposal appears to be an effort to select language from the USEPA rules which permit
opponents might find useful in future permit appeals. They have failed to justify their proposal
to add a new subsection 3 09.143(a) and the ICA urges that it not be adopted.
SECTION 3 09.146
Proposed Revision ofSubsection 309.146(a)(2)
Proponents propose to revise subsection 309.l46(a)(2) by adding language providing that
the reports required from NPDES permittees shall be adequate to determine compliance with
permit conditions. Proponents acknowledge that this language is not taken from USEPA
regulations but from the NPDES Permit Writers’ Handbook. (Proponents’ Statement, p. 15).
13
Again the ICA questions the wisdom ofwriting language from guidance documents into
the Board’s Part 309 regulations. This proposed reviaion appears to be anothet iiithit~edto
augment the arsenal ofmaterial available to be relied on by NPDES permit opponents in permit
-- -~ - -~
appeals. Ifthis proposal is actually intended to remedy anyreal problem under existing NIPDES
• •...
-‘
permitting procedures, the Proponents have failed to provide any information documenting the
existence ofthe problem. In fact, no suchproblem exists. The ICA urges •that the proposal
revision ofsubsection 309.146(a)(2) not be adopted.
Proposed Revision Subsection 309.146(a) —New
309.146(a)(5)
Proponents propose that a new subdivision
(5)
be added to subsection 309.146(a) and that
existing
309.146(a)(5)
be renumbered. The new subdivision would contain language from 40
CFR Section 122.48, which the Proponents contend is required to satisfy federal requirements.
(Proponents’ Statement, p. 15).
Viewed on its face, the proposed new language seems to duplicate existing requirements
of subsection (a) in an awkward5 and redundantmanner. Proponents explain, however, that the
revision is necessary to correct “confusion.” “It has sometimes by sic seen as acceptable to
issue a permit without all ofthe key monitoring terms in the permit..
.“
(Proponents’ Statement,
pp. 15-16).
The “confusion” to which the Proponents refer is presumably the Board’s decision in the
Prairie Rivers Network case. Proponent Prairie Rivers Network argued that the Agency should
not have issued an NPDES permit to Black Beauty Coal Company with a condition’that the
permittee submit a monitoring plan for Agency approval (rather than further delaying the permit
~
Existing subsection 309.146(a) begins with the phrase “The Agency shall require...” followed by a list of dependent clauses
-
containing the specific requirements. The proposed revision would insert a complete sentence beginning “All permits shall
specify...” into the string of clauses.
14
and seeking public comment on the monitoring plan). The Board rejected Prairie Rivers
~‘Tetwork’sargument.
•
•
‘
-
- -
-‘
Assuming that Proponents are attempting to overrule this portion ofthe Board’s Prairie~,,,.
Rivers Network decision sub silentio, the ICA submits that the proposed language would not
,
necessarily have this effect. Nothing in the federal rule copied in this proposed language
prohibits what the Agency did in the Prairie Rivers Network case, which was entirely
appropriate. The proposed language would merely make Section 309.146 longer and more
confusing, and perhaps provide permit opponents with more opportunities to utilize permit
appeals to delay or prevent important projects from occurring. The existing rules are fully
sufficient to comply with applicable requirements, so ICA urges that this proposal not be
adopted.
CONCLUSION
The Proponents’ rulemaking proposal would not improve opportunities for effective
public participation in illinois NPDES permitting. The proposal instead would create additional
paperwork and procedural requirements, and multiply opportunities for diehard opponents of
projects requiring NPDES p ennits to delay those permits through unfounded administrative
appeals. The ICA urges the Board not to adopt the proposal.
Respectfully submitted,
• - -
Fredric P. Andes
Counsel for Indiana Coal Association
Dated: March 24, 2003
Fredric P. Andes
Barnes & Thomburg
10 S. LaSalle Street, Suite 2600
Chicago, illinois 60603
(312) 214-1313
15
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached NOTICE OFFIL.ING,.
APPEARANCE OF FREDRIC P. ANDES, and PREFILED TESTIMONY OF FREDRIC P.
ANDES, by U.S. Mail, upon the persons included on the R03-19 Service List, below.
Dated: March
25,
2003
R03-19 Service List
W.C. Blanton
Blackwell Sanders Peper Martin, LLP
2300 Main, Suite 1000
Kansas City, MO 64108
Larry Cox
Downers Grove Sanitary District
2710 Curtiss Street
Downers Grove, IL
60515
James L. Daugherty, District Manager
Thom Cr~eekBasin SanitaryDistrict
700 West End Avenue
Chicago Heights, IL 60411
John Donahue
City ofGeneva
1 800 South Street
Geneva, IL 60134
Dennis L. Duffield, Director
Department ofPublic Works and Utilities
City of Joliet
921 E. Washington Street
Joliet, IL 60431
Albert Ettinger
Environmental Law & Policy Center
35 B. Wacker Drive, Suite 1300
Chicago, IL 60601-2110
Susan M. Franzetti
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, IL 60606
LisaM.Frede
Chemical Industry Council
9801 W. Higgens Rd, Suite
515
Rosemont, IL 60018
Dorothy Gunn, Clerk (personal service)
Illinois Pollution Control Board
100W. Randolph, Suite 11-500
Chicago, IL 60601
James T. Harrington
Ross & Hardies
150 N. Michigafl, Suite 2500
Chicago, IL 60601
Roy M. Harsch
Gardner, Carton & Douglas
Quaker Tower, 321 N. Clark
Chicago, IL 60610-4795
Ron Hill
Metropolitan Water Reclamation District
100E.Erie
Chicago, IL 60611
Katherine Hodge
Hodge Dwyer Zeman
3150 Roland Avenue, P.O. Box
5776
Springfield, IL
62705-5776
Fred L. Hubbard
Attorney At Law
415 North Gilbert Street, P.O. Box 12
Danville, Illinois 61834-0012
Illinois Department ofNatural Resources
Office ofLegal Services
OneNatural Resources Way
Springfield, IL 62702-1271
Gerald T. Karr, Assistant Attorney General
Office ofthe Attorney General
Environmental’ Bureau
188 W. Randolph,
20th
Floor
Chicago, IL 60601
Vicky McKinley
Evanston Environment Board
223 GreyAvenue
Evanston, IL 60202’
Robert
~.
Messina, General Counsel
Thomas G. Safley
Illinois Environmental Regulatory Group
215 East Adams Street
Springfield, IL 62701
Irwin Polls
Metropolitan Water Reclamation District
6001 -West Pershing Road
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Cicero, Illinois 60804
Michael G. Rosenberg
Metropolitan Water Reclamation District
100 East Eri~Street
Chicago, IL 60611
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Sue A. Schulz
Mary G. Sullivan
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General
&
Associate Corporate Counsel
Illinois-American Water Company
300 North Water Works Drive
Belleville, IL 62223
SanjayK. Sofat
Connie L. Tonsor
Illinois ‘Environmental Protection Agency
1021 North Grand Ave. East
Sprii~gfield,ilL62794-9276
Joel Sternstein
Assistant Attorney General
Environmental Bureau North
188 West Randolph Street,
20th
Floor
Chicago, IL 60601
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Marie Tipsord (personal service)
Hearing Officer, Pollution Control Board
100 West Randolph, Suite 11-500
Chicago, IIL 60601
2
BARNES &T1-IORNBURG
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2600 Chase Plaza
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10South LaSalle Street
chicago, Illinois 60603 U.S.A.
(312) 357-1313
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Fax (312) 759-5646
—
Erika
i~.
Powers
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‘-
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(312) 338-5904
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www.btlaw.com
Enail: epowers@btlaw.com
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March25, 2003
Ms. Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
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100 West Randolph, Suite 11-500
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Chicago, IL 60601
Re:
In the Matter oft ProposedAmendments to Public Participation Rules in
35111. Adm. Code Part 309
—
NPDES Permits and PermittingProcedures
R03-19 (NPDES Rulemaking
Dear Ms. Gunn:
Enclosed please find an original and 10 copies of each of the following documents for
filing in the above matter:
‘
‘4
• NOTICE OF FILING
• APPEARANCE OF FREDRIC P. ANDES
• PREFILED TESTIMONY OF FREDRIC P. ANDES
• CERTIFICATE OF SERVICE
Please return one date-stamped copy of each document to me with the me$senger. Ifyou
have any questions, please feel free to call me at (312) 338-5904. Thank you very much foryour
assistance in this matter.
Very truly yours,
BARNBS & THORNBIJRG
Erika K. Powers
cc: R03-19 Service List
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ATTORNE~Y
GENERAL
CHDSOI EPOWERS 162281v1
lIAR 2
6
2003
‘~BQNME~
Indianapolis
Fort
Wayne
South Bend
Elkhart
Chicago
Washington,
D.C.
